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 The original action had been settled and the proposed image withdrawn as a copy.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 had however produced their own image, but one which fitted the same description.
Held: The work was infringing: ‘ I have not found this to be an easy question but I have decided that the defendants’ work does reproduce a substantial part of the claimant’s artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant’s work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder’s image visually interesting. It is not just another photograph of cliched London icons.’ and
‘ I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder’s picture. But the defendants do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as the claimant’s image? The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton 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. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant’s image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened.’
Birss QC HHJ said: ‘Reviewing the matter in court, a measure of clarity emerged, the upshot being that defendants deny infringement but they do not advance a case of independent design. They contend that the question of infringement can be decided objectively, considering two matters, first taking care about what exactly is original about the claimant’s copyright work and second by conducting an objective comparison between the Tea Bag Tin Image and the 2005 Work. They contend that Mr Houghton’s intention when he set out in February 2010 to produce a new red bus image was to avoid producing a substantial reproduction of the 2005 Work but they accept that his intention is irrelevant and accept that Mr Houghton obviously knew about the claimant’s work in question’
Judges:
Birss QC HHJ
Citations:
[2012] EWPCC 1
Links:
Citing:
Cited – Infopaq International v Danske Dagblades Forening ECJ 17-Jul-2009
ECJ Copyright Information society – Directive 2001/29/EC Articles 2 and 5 – Literary and artistic works – Concept of ‘reproduction’ Reproduction ‘in part’ Reproduction of short extracts of literary works – . .
See Also – Temple Island Collection Ltd v New English Teas Ltd and Another PCC 22-Jun-2011
The court gave reasons for disallowing an application by the claimant to amend its particulars of claim. . .
See Also – Temple Island Collection Ltd v New English Teas Ltd and Another PCC 29-Jul-2011
. .
Cited – Gross v Seligman 1914
United States – Second Circuit – The copying of a photograph so as to infringe does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it. Infringement is not confined to exact reproduction but includes . .
Cited – Krisarts SA v Briarfine Ltd ChD 1977
The plaintiff alleged copyright infringement in respect of his paintings of well known views of London landmarks. He sought an interlocutory injunction.
Held: Reproduction in a material form of a substantial part of a work in which copyright . .
Cited – Bauman v Fussell (1953) CA 1978
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 . .
Cited – 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 . .
Cited – Antiquesportfolio Com Plc v Rodney Fitch and Co Ltd ChD 21-Jul-2000
In a contract to supply designs, there was an implied obligation to carry out the design work with reasonable care and skill and to use reasonable care to ensure that the materials supplied were free of any adverse claim.
Held: The breach . .
Cited – O (Peter) v F KG 16-Dec-2003
(Austrian Oberster Gerichtshof (Supreme Court)) The court considered a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the . .
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 04 October 2022; Ref: scu.450539
