Question:

Some have argued that copyright lawsuits have been used to stifle innovation,
do you agree? Why or why not?

Answer:
Copyright lawsuits don’t stifle innovation rather encourage creativity. Because copyright lawsuit
is protecting work’s expression only, rather than the ideas contained in the work; ideas may be
taken and applied freely.
This well-established principle of copyright law is stated by TRIPs (Trade-Related Aspects of
Intellectual Property Rights), Article 9(2):
“Copyright protection shall extend to expressions and not to ideas, procedures, and methods of
operation or mathematical concepts as such.”
Taking an idea does not infringe copyright. A magazine published a reproduction of a colour
photograph that the plaintiff had taken in Cuba of two cocks fighting. The defendant artist liked
the photo, pinned it on his wall, and painted a picture based on the photo. The painting was duly
sold by an art dealer. The plaintiff sued the defendant for copyright infringement. The action was
dismissed by the County Court and the Court of Appeal.
JUDGE DALE in the County Court stated:
Nobody denies [the] picture was inspired by [the] photograph. The mere taking of an idea would
not be an infringement. The birds are interlocked in a way very similar to the photo – but any birds
fighting would get similarly interlocked. I have to consider whether this picture is a copy of the
photograph. The points are very fine – I think I am entitled to look at finer points. Although the
photograph is a brilliant one there is not the life in it. In the painting the bird’s heads show a vigour
and life which has nothing to do with the photograph. In the photograph there is sunlight and
shadow as part of the art of the photographer. There are no shadows really in the picture as an
integral part.
I will only mention a few important differences. There is no sun and no shadow in the painting and
no attempt to produce shadow. Having jettisoned the shadow the artist has adopted bright red to
show blood and fury. The left-hand cock has almost dissolved in flame. In my view the effect is
entirely different from the photograph. There are some similarities such as the positions of the
birds; the claws are similar, of course. I think these factors bring in the art of the artist here and
show that he has used the plaintiff’s work as an inspiration; that he has not copied it, but has made
a new work of art of his own.

Reference: Vaver, D.V. and Sirinelli, P.S. (2002) Principles of Copyright: Cases and Materials, WIPO
Publication No. 844, Geneva, Switzerland: World Intellectual Property Organization.