The plaintiff, a photographer had taken a photograph of 2 cocks fighting which was published in a magazine. The defendant painted a picture from the photograph and the plaintiff claimed that the painting was a breach of his copyright in the photograph. The plaintiff contended that the position of the birds was the main element of the photographic composition and that a substantial part of the photograph had been reproduced. The County Court judge had held that there was not an infringing copy. The effect of the painting was entirely different from that of the photograph, and the defendant had produced a new work of art of his own using the plaintiff’s work only as an inspiration.
Held: (Romer LJ dissenting) The appeal failed. The point on appeal was that His Honour was not imposing a test which was wrong because it was too high in seeking substantial similarity overall. The effect of the painting was entirely different from that of the photograph, that the defendant had produced a new work of art of his own using the plaintiff’s work only as an inspiration and that infringement of copyright had not been established.
There may well be infringement if the defendant’s work bears a similarity to a substantial part of the plaintiff’s work even if it differs markedly in other ways. It is not necessary that there be a substantial similarity overall between the two works:
Somervell LJ considered that the difference in colour treatment between the photograph and the painting it inspired was such as to prevent the latter constituting an infringement of copyright in the photograph, although both the subject-matter of the photograph and the positioning of that subject-matter in the photograph were copied by the painter.
Romer LJ (dissenting) said that the trial judge had not properly considered whether the painting was a reproduction of a substantial part of the photograph. Enumeration of the features of the photograph which were not present in the painting was not material to this question. Tthe consideration should be rather as to what had been reproduced than to what had not.
Judges:
Somervell, Birkett, Romer LJJ
Citations:
[1978] RPC 493
Cited by:
Cited – Temple Island Collections Ltd v New English Teas Ltd and Another PCC 12-Jan-2012
The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 04 May 2022; Ref: scu.535638
