Monday, July 21, 2014

If Buses Are Red, Can Fair Use Be Blue?

Annex 1

Annex 2

In 2012, more than a few eyes on both sides of the pond were raised when a brilliant young recently appointed judge named Colin Birss of the Patents County Court in England ruled that the picture called “Annex 1” above was infringed by the picture called “Annex 2” underneath it above. These were different photographs from different vantage points, as the Judge so found. Basically, they are pictures of a red bus appearing before the black and white British Houses of Parliament. But still, he found that there was infringement. There was much ado about whether copyright had been extended to the “idea” of a red bus (which is, as we all know, the iconic colour of London buses) against the black and white background of the British Houses of Parliament.  The idea of a red figure against a black and white background figured prominently, of course, in the well-known 1993 Spielberg film Schindler’s List:

While Colin Birss’s decision has stirred much discussion, it should be noted that it strictly speaking has no “stare decisis” precedential value in England because the Patents County Court is rather like a small claims court of IP cases.  

However, and in any event, Colin Birss is now Sir Colin Birss and is a judge and rising star of the  High Court of Justice of England and Wales and is reportedly an avid bee-keeper in his spare time. He can also be sighted and heard from quite regularly at Hugh Hansen’s annual Fordham IP Conference in New York, which is always held on the first Thursday and Friday after Easter™. (I have also been known to have frequented that event for many years and had something to say on many occasions concerning Canada and related issues. I have indeed met Sir Colin at that event several times. Likewise, with other British copyright and cat fanciers, such as Jeremy Phillips of the fabled 1709 Blog who revealed the true colours of the red bus story and who I have alerted to the the situation at Brixton's pub in Ottawa described below.)

So, I happened to have lunch the other day with a distinguished  Canadian Copyright Board practitioner (who is so modest that he would surely want to remain nameless) at Brixton’s, the pleasant British style pub on Sparks Street in Ottawa and here is what our table covering looked like: