Harman Pictures N V v Osborne: ChD 1967

The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book ‘The Reason Why’. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a marked similarity.
Held: There was a copyright infringement in the screenplay where the similarity in language was slight but the choice of incidents was the same. Goff J discussed the situation which arose where there was an apparent similarity of ideas: ‘It is common ground that there can be an original work entitled to protection although the subject matter is not original, but is for example, as in the present case, some well-known event in history. The precise amount of knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the Copyright Act, 1911, cannot be defined in precise terms: per Lord Atkinson in Macmillan and Co. Ltd. v. Cooper. There is, however, no dispute that Mrs. Woodham-Smith displayed all these qualities in amply sufficient measure and acquired copyright in her book, whilst the plaintiffs’ title to the film rights by assignment is also not disputed. What is much more difficult is whether the plaintiffs have made out a sufficient prima facie case of infringement, or rather intended infringement, and before considering the facts, I must refer at some length to the relevant law.
There is no copyright in ideas or schemes or systems or methods: it is confined to their expression . . .Br />One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history, see Poznanski v. London Film Production Ltd. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources, as was emphasised in the case of Pike v. Nicholas . . ‘
The judge asked: ‘… did John Osborne work independently and produce a script which, from the nature of things, has much in common with the book, or did he proceed the other way round and use the book as a basis, taking his selection of incidents and quotations therefrom, albeit omitting a number and making some alternations and additions, by reference to the common sources and by some reference to other sources?’
Goff J: (quoting from authority) ‘… another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it. In determining whether an injunction should be ordered, the question, where the matter of the plaintiff’s work is not original, is how far an unfair or undue use has been made of the work? If, instead of searching into the common sources and obtaining your subject-matter from thence, you avail yourself of the labour of your predecessor, adopt his arrangements and questions, or adopt them with a colourable variation, it is an illegitimate use’. And
‘In the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But as the law has been precisely stated by Hall V.C. in Hogg v. Scott, .the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man’s labour or, in other words, his property.’


Goff J


[1967] 2 All ER 324, [1967] 1 WLR 723


England and Wales

Cited by:

CitedAmerican Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
CitedNavitaire Inc v Easyjet Airline Co and Another ChD 30-Jul-2004
The claimant alleged infringement of its copyright in a software system which dealt with airline reservations. It was not said that any code had been copied, but merely that an express requirement of the defendant ordering the system was that it . .
CitedRavenscroft v Herbert ChD 1980
The plaintiff had written a non-fiction book entitled ‘The Spear of Destiny.’ He claimed infringement of copyright by the defendant in his book of fiction called ‘The Spear’. Both books were centered on a spear exhibited in Vienna, said to have been . .
CitedBaigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property

Updated: 29 April 2022; Ref: scu.182266