I.e., the defendant's crime was embodied entirely in the defendant's state of mind rather than in the defendant's actions or in the work the defendant produced.
The ruling[1] is actually quite explicit that the pictures in question are obviously dissimilar (10), and the ruling is also explicit that brand confusion was not the issue (71).
I think the ruling is absolutely as broad and as unreasonable as the most hysterical headlines make out. For once.
In paragraph 67 he explains this further: the defendant "could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament".
I think that if this work was done as a "clean room" effort where the requirements were specified and the designer wasn't shown the template to replicate, the output would have likely differed in many other ways and the court case would have swung the other way or avoided completely.
Which is funny, because after the people pulled up a bunch of other photos that were pretty similar, the plaintiff said they'd never seen them before and the judge simply took them at their word. While he didn't consider item 71 for some reason, it's probably the main thing that undercut any way for them to claim theirs was original.
Apparently, if nobody knew where they got the idea from, it would've been okay?
I think you mean 68.
There the judge explains that if the defendants hadn't put in as much effort, the resulting photo would be OK. That's an assertion he's not really in any position to make, frankly.
If the defendant had done as he suggests, and the picture turned out to be similar enough to the claimant's, why wouldn't the claimant still sue? Why wouldn't the judge find that alternate photo to be a deliberate imitation, and thus an infringement in that case, exactly as he did in this one?
...the output would have likely differed in many other ways...
This judgment explicitly states that copyright infringement can occur even if the works in question don't look at all alike (30) and that the differences between the pictures aren't important but the similarities are (56).
I half-suspect the judge is an amateur photographer and he's tying himself in all these logical knots because the defendants in this case are a bunch of jerks.
But I also think (in my non-legal-expert way) that this is a really, really stupid decision with terrible implications, and I hope it's overturned or reversed in some way.