It is trite law that if two photographers take identical pictures of the same scene at the same time from the same position each of their photographs is an original work and neither infringes the copyright in the other. However, much of the skill of a photographer lies in his choice of subject and the arrangement of the scene. The question whether copyright subsists independently in such an arrangement arose in Creation Records Ltd. v News Group Newspapers Ltd. (1997) The Times 27 April.
A swimming pool at a country club was drained and various props including a white Rolls Royce motor car assembled for a photograph of a well-known group of musicians for reproduction on their album cover. Although the public was not admitted to the session certain fans of the group who happened to be there were allowed to photograph the scene before official pictures were taken. A freelance photographer who was booked into the club photographed the scene during the session. One of his pictures, which was similar to the one that appeared on the group’s album, were published in a national newspaper and offered for sale to the public as a poster. The musician who had arranged the scene together with the group’s record company and licensee sued for infringement of copyright and breach of confidence and moved for interlocutory injunction restraining further publication until trial.
Lloyd J found that there was an arguable case in confidence but not in copyright. The arrangement of the props was neither a sculpture nor a collage. Its composition was intrinsically ephemeral its continued existence being in the form of a photograph.