"Copyright does not protect an idea, but the expression of an idea."
Copyright actually protects from copying. Even if the expression is identical if no copying took place then there is no infringement.
That said. Copyright also expires which is what you, bane, have failed to mention. Also, copying the style - in this particular case - would have been something along the lines of a yellow cab on the brooklyn bridge with the background in monochrome. Even it seems if they'd had a red bus on Tower Bridge or elsewhere. But here they've used the same style and very nearly the same content. So I don't think you're being quite fair.
An analogue might be recreating Warhol's Campbell's Soup Cans with the cans marginally rotated, basing the piece on the original work (trademark issues aside). Now I'd like to say that I think that piece actually would be a valid new work - and have quite a lot of substance - but nonetheless it would be derivative of the original beyond mere inspiration IMO.
Before I get any further I'd better read the ruling ...
> Copyright actually protects from copying. Even if the expression is identical if no copying took place then there is no infringement.
Maybe in the UK, given that the judge did say something close to that, but here in the USA that's not really true, unless perhaps you could show that there was so little creativity that it came about by accident. But you might have a hard time getting them to believe you.
The issue is the burden of proof. In the tort of copyright in the UK I gather the burden is the balance of probabilities. Maybe in the USA courts the burden lies on the defendant proving they weren't able to copy (rather than on the plaintiff showing they [most likely] did).
It's not only a defence where a work is uncreative (that might stop it being an "original work" in Berne Convention terms after all) - if it's impossible for one to have copied the other then there is no infringement (eg the alleged copied work was privately held in a different country to the defendant).
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Edit: http://forum.citizendium.org/index.php?topic=1377.225;wap2 link surprisingly has a couple of good quotations in the response from '"The essence of copyright is originality [...]"'. In particular - and I'm quoting quotes here - are these two points:
"Since his work need not be novel, all that is needed to obtain copyright is originality - that the work have originated with him; the author cannot have copied it from another." (17 U.S.C.A., Section 102(a) as referred to in 'Intellectual Property: Patents, Copyright, and Trademark' by Arthur R. Miller and Michael H. Davis, page 289)
and
"A copyrightable work must be original and fixed. Originality does not require that the work be exceptionally creative or unique, only that it possess a mere modicum of creativity and is the product of independent creation." ('Oxford Guide to American Law', page 661)
Lastly I'm going to grab my own quote from Feist V Rural Telecom (eg http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us... [why didn't I hit up FindLaw first, they're always good for this sort of thing]) - a US Court of Appeal judgement:
"Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying."
I just think it would be hard to show that you came up with a work independently and had never seen the other work if your work was identical to someone else's, that's all. I'm not saying you couldn't, just that it would be rather hard to get them to believe you.
Then again, the judge simply took the plaintiff at his word when he was shown a bunch of other similar works and he claimed never to have seen them. So maybe you could convince someone? The same option was, apparently, not available for the defendant because their products were sold side-by-side and the plaintiff used the image first.
"Copyright does not protect an idea, but the expression of an idea."
Copyright actually protects from copying. Even if the expression is identical if no copying took place then there is no infringement.
That said. Copyright also expires which is what you, bane, have failed to mention. Also, copying the style - in this particular case - would have been something along the lines of a yellow cab on the brooklyn bridge with the background in monochrome. Even it seems if they'd had a red bus on Tower Bridge or elsewhere. But here they've used the same style and very nearly the same content. So I don't think you're being quite fair.
An analogue might be recreating Warhol's Campbell's Soup Cans with the cans marginally rotated, basing the piece on the original work (trademark issues aside). Now I'd like to say that I think that piece actually would be a valid new work - and have quite a lot of substance - but nonetheless it would be derivative of the original beyond mere inspiration IMO.
Before I get any further I'd better read the ruling ...