Garrett: The ongoing fight against GPL enforcement

Firstly, the two companies were already in court because the defendant had copied, and used commercially, an image belonging to the plaintiff. This is a criminal offence (I know it isn't in the US, but it is over here).

Secondly, the defendant studied the original picture, and set out to produce a replacement. In literature, this would be a clear case of copyright violation - producing a derivative work without permission. I know "photography is different", but as somebody on GL pointed out, people who use clean-room re-implementation to avoid copyright violation make a point of *avoiding* intimate knowledge of the product they are copying. The defendants *studied* the product they were copying.

So that's why Judge Birss ruled the way he did. Anybody trying to build on this to claim "your photo is similar to mine" is likely to find themself on a sticky wicket.

Cheers,
Wol