An English court has ruled that photographing a scene that is “substantially similar” to a scene shot earlier can be an infringement of the first photographer’s copyright. The photos depict a similar but different scene and were taken in different places at different angles. Contrary to the common notion that ideas never can be copyrighted, the judge ruled that it was the idea of the photo that was copyrighted, not the photo itself.

The problem with this ruling? Many photographers take pictures of the same objects or subjects at the same time. Consider the scrums of papparazzi or news pool photographers who shoot the prominent  or celebrities: Is it possible that this ruling would grant the photographer with the fastest shutter the exclusive right to a photo taken by many in a group? Many a forlorn photojournalist has stood, for example, on an airport tarmac or similar public place to record the emotional reunion of, say, a returning soldier, only to see his adjacent compatriot walk off with a top press prize for an image framed almost exactly but shot a millisecond later; no one has had the moxie to add injury to insult by asserting copyright infringement, too. This ruling also could send individuals with large archives of photos scurrying through their collections for possible infringement claims.

This ruling also potentially could be extended to movies. Say a director shoots a scene of two people meeting at the Tube outside Piccadilly Square; would another cinematographer who later captured another “substantially similar” scene be guilty of infringement? Would the cinematic homage paid in their films by George Lucas and Steven Spielberg to Akira Kurosawa now be termed infringment?

Giving copyright protection to an idea goes against the goal of promoting the arts by discouraging people from building upon the ideas of others.