Interlego AG v Tyco Industries Inc: PC 5 May 1988

How much new material for new copyright

(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new information addressed to the purchaser in the form of written instructions, gave rise to a new and independent copyright.
Held: Not every minor alteration created a new copyright. Skill, labour and judgment expended solely in the process of copying could not confer originality. There had to be some additional element of material alteration sufficient to make the work an original work. It was the quality rather than the quantity of the addition which merited protection.
Lord Oliver of Aylmerton said: ‘Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an ‘original’ artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality . . There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing. Moreover it must be borne in mind that the Copyright Act 1956 confers protection on an original work for a generous period. The prolongation of the period of statutory protection by periodic reproduction of the original work with minor alterations is an operation which requires to be scrutinised with some caution to ensure that that for which protection is claimed really is an original artistic work.’

Lord Keith of Kinkel, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle
[1988] RPC 343, [1988] 3 All ER 949 PC, [1988] 3 WLR 678, [1988] 1 BLR 271, [1988] 2 FTLR 133, [1989] AC 217, [1988] UKPC 2
Bailii, Bailii
England and Wales
CitedBlacks v Murray 1870
The court considered what constituted originality for a literary work, and set down a test. It was necessary to make extensive and substantial alterations in order to create a new literary work, not just a few emendations and the addition of a few . .
CitedLB (Plastics) Ltd v Swish Products Ltd ChD 1979
Whitford J said: ‘The cases since the Act of 1911 have, however, I think quite plainly established that no originality of thought is needed to sustain a claim to copyright. Under copyright ideas are not protected, only the skill and labour needed to . .
CitedKestos Limited v Kempak Limited ChD 1935
Novelty was claimed in shape or configuration of the brassiere the subject of the registration. Held; Under the law of registered designs, the designer had to state in what respect he claimed novelty – was it shape, configuration pattern or . .
CitedAMP Inc v Utilux Pty Limited CA 1970
. .
CitedStenor Ltd v Whitesides (Clitheroe) Ltd HL 1948
Viscount Simon said (Lord Porter agreeing) that a design which is a shape in which all the features are dictated solely by the function which is to be performed by the article to which the shape is applied and where the shape possesses no features . .
CitedTecalemit Limited v Ewarts Limited (No 2) ChD 1927
The design in question consisted of a drawing or picture of a nipple, such as was used for the purpose of lubricating the bearings of automobiles. It was submitted for the plaintiff that if a design had utility, it might still be registered under . .
CitedAllibert v O’Connor ChD 1981
Whitford J said: ‘It would have expected a designer designing toys to have the question of the appeal of the toy to the eye, even in the case of a functional toy, in mind. Mr. Rylands who gave evidence for the defendants said that when designing a . .
CitedInterlego AG v Alex Folley (Vic J Proprietary Limited ChD 1987
The design at issue was ‘a blend of efficiency with visual appeal’
Held: To hold that the reference in the relevant designs legislation to a design being ‘capable of being registered’ means registrable as distinct from a design which complies . .
CitedStephenson, Blake and Co v Grant, Legros and Co Ltd ChD 1916
A drawing of a letter could be both the subject matter of copyright and protected under the Patents and Designs Act 1907. . .
CitedStephenson, Blake and Co v Grant, Legros and Co Ltd CA 1917
The order at first instance was discharged ‘without prejudice to any question so that it cannot be used as a precedent’ . .
CitedEmerson v Davies 1845
Mr. Justice Story said: ‘The question is not whether the materials which are used are entirely new and have never been used before; or even that they have never been used before for the same purpose. The true question is whether the same plan, . .
CitedUniversity of London Press Ltd v University Tutorial Press Ltd ChD 1916
In a copyright claim, the test of originality which had to be passed was set out by Peterson J, saying: ‘The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are . .
CitedBlack v Murray 1879
Lord Kinloch said: ‘I think it clear that it will not create copyright in a new edition of a work, of which the copyright has expired, merely to make a few emendations of the text, or to add a few unimportant notes. To create a copyright by . .
CitedBayliner Marine Corporation v Doral Boats Limited 1987
Federal Court of Appeal of Canada –
Held: A ‘design capable of being registered’ did not mean ‘registrable’ but meant only a design which complied with the criteria necessary to qualify as a ‘design’ within the meaning of the Act. To hold the . .
CitedMacMlillan and Co Ltd v Cooper 1923
It is not the appropriation of the raw material that is at issue in copyright claims but the appropriation of another’s labour, skill and capital. Accordingly, Lord Atkinson said: ‘. . it is the product of the labour, skill, and capital of one man . .
CitedIn re Coca-Cola Co HL 1986
The claimants had used the distinctive shape of their bottle to help advertise their soft drink. The registered design rights in the bottle had expired.
Held: The House refused to allow trade mark law to be exploited and rejected the argument . .
CitedUsher v Barlow CA 1952
A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation . .
CitedKing Features Syndicate Inc v O and M Kleeman Ltd HL 1941
The owners of copyright in drawings of ‘Popeye, the Sailor’ sued importers of ‘Popeye’ dolls and other toys. The defendants contended that the copyright in the original work had been lost by the operation of section 22 of the 1911 Act because the . .
CitedBritish Northrop Limited v Texteam Blackburn Limited ChD 1974
Megarry J said; ‘Copyright is concerned not with any originality of ideas but with their form of expression, and it is in that expression that originality is requisite. That expression need not be original or novel in form, but it must originate . .
CitedGA Cramp and Son Limited v P Smythson Limited 1944
the original compiler of a 1933 diary was dead and there was a consequent lacuna in the case of the unsuccessful plaintiff claiming in copyright.
The question to be determined on the issue of originality is one of fact and degree in every case . .
CitedLadbroke (Football) Ltd v William Hill (Football) Ltd HL 1964
What is substantial copying
The plaintiff alleged copying of their football pools coupons and copyright infringement. The issues were as to the extent of copying required to establish infringement, and whether it was proper to look at the several parts of the work separately. . .
CitedTemple Instruments Limited v Hollis Heels Limited 1973
Copyright was claimed in two drawings both on the same sheet of paper. The Defendants argued that there were two copyrights, one in each drawing, and that each had to be looked at separately.
Held: Graham J said: ‘I find this entirely unreal . .
CitedBritish Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd CA 1984
. .
CitedBritish Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd HL 1986
The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the . .
CitedCatnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
CitedRose Plastics GMBH v William Beckett and Co (Plastics) Limited ChD 2-Jul-1987
The essence of an artistic work is that which is ‘visually significant’. . .

Cited by:
CitedSean Sweeney, Graham Edward Camps v Macmillan Publishers Limited, Danis Rose ChD 22-Nov-2001
The claimants were trustees of the estate of James Joyce, and complained at the publication of unpublished parts of the work Ulysses in a readers edition by the defendants. Published works are protected for fifty years after the author’s death, but . .
CitedIn Re Smith Kline and French Laboratories Ltd HL 9-Feb-1989
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering . .
CitedSawkins v Hyperion Records Limited ChD 5-Jul-2004
The claimant had edited ancient music scores so as to be ready for performance for the defendant. He asserted a copyright. The defendants argued that the contribution was too little to create a copyright.
Held: To succeed Dr Sawkins had to . .
CitedHyperion Records Ltd v Sawkins CA 19-May-2005
The claimant had developed historical musical works for performance. They were published by the defendant, by means of recordings of a performance from the scores he had prepared – so called ‘performance editions’. The many hundreds of hours . .
CitedCala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd ChD 6-Jul-1995
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .
CitedThe Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
CitedTemple 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

Leading Case

Updated: 01 November 2021; Ref: scu.183003