"Originality" and "reproduction" in copyright law with special reference to photographs

Abstract

Black cabs and red buses are part of the London landscape. Countless tourists, bedazzled by the sight and using expensive Nikons, cheap disposable cameras or mobile phones, have been taking snapshots of a red bus passing the Houses of Parliament in Westminster, quite often because they had seen the scene before in some or other tourist brochure, all of them oblivious of copyright issues. There is reason to believe that the reaction of any sensible person on the Clapham bus would be that there cannot be any copyright in a photo of such a mundane scene and, in any event, unless one copies a photograph for instance by photocopying, one cannot infringe copyright. It is also unlikely that the poor tourist, turning around and photographing the statue of Mr Mandela on Parliament Square, would give a thought to the fact that he was infringing the copyright of the sculptor, at least under South African law. A shot of General Smuts, though, will not cause any complication under our law, considering that the sculptor, Jacob Epstein, died in 1959 and that we have not yet succumbed to the life plus 70-regime.