Lecture 6: Copyright iii: Infringement:

- It is only a CR infringement if the def copies the work and copies a substantial part of
the work.
- First requirement:

1. Copying: There must be actual copyright it is not a copyright infringement if the

defendant independently recreates the work. Can be indirect or direct copying.
- How do you prove copying? Because no-one admits to it. The test was found in:

 Designer Guild v Russell Williams [1998]- Sufficient Similarity + Access = Prima Facie
Evidence of Copying. RW said we didn’t copy it we came up with it ourselves, the
court said if there is sufficient similarity and if the def has access to the copy of the
plaintiffs work then there will be a rebuttable presumption copying has occurred but
there is a presumption.
- In this case, the two designs were held to be sufficiently similar, and the defendant
had access to a copy of the Ixia design, because it had been displayed at trade shows
the defendant attended. A list of the similarities from the two works appears below:

 Each fabric consists of vertical stripes, with spaces between the stripes equal to
the width of the stripe, and in each fabric flowers and leaves are scattered over
and between the stripes, so as to give the same general effect.
 Each is painted in a similar neo-Impressionistic style. Each uses a brushstroke
technique, i.e. the use of one brush to create a stripe, showing the brush marks
against the texture.
 In each fabric the stripes are formed by vertical brush strokes, and have rough
edges which merge into the background.
 In each fabric the petals are formed with dryish brushstrokes and are executed
in a similar way (somewhat in the form of a comma).
 In each fabric parts of the colour of the stripes show through some of the petals.
[Technically called the “resist effect”].
 In each case the centres of the flower heads are represented by a strong blob,
rather than by a realistic representation.
 In each fabric the leaves are painted in two distinct shades of green, with similar
brush strokes, and are scattered over the design.”

 Subconscious copying?

- A famous US case on this point is Bright Tunes Music v. Harrisongs Music, 420 F.
Supp. 177 (SDNY 1976). In this case, the Chiffon’s alleged that George Harrison’s
song, My Sweet Lord, had copied their work, He’s So Fine. Harrison alleged that he
must have copied the Chiffon’s song, subconsciously. That is, he didn’t realize he was
copying their song until it was pointed out to him. The US court held this was still an
act of copying. It seems like UK courts will likely adopt the same rule.

2. Substantial part: Literal copying: another requirement:

- Literal copying is where the defendant copies verbatim a small part of the claimant’s
work. As the (Qualitative test) test laid out in Designer’s Guild shows, whether it is a
substantial part depends on how important the copied part is to the copyrighted
work. In this case, I have copied a section of the chorus. It is likely therefore that this
will be considered a substantial part of the song. Designer’s Guild, Lord Millet: ”It
depends upon its importance to the copyright work. It does not depend upon its
importance to the defendant’s work.”

3. Substantial part: Non-literal copying:

- NLC occurs where the defendant does not actually copy any of the work but copies
the broad outline of the work.
- Two-part analysis:

a. Idea v Expression- It is not a copyright infringement to copy ideas- ideas if expressed

in a unique way it is not an infringement of CR. You can copy the idea not the
expression.
b. Similarity of expression- If there has been copying of expression, the question is has
the defendant copied a substantial part of the expression. This involves a
comparison between the two works. And the test, is laid out by Lord Scott of Foscote
in Designer’s Guild. Designer’s Guild, Lord Scott of Foscote: “Has the infringer
incorporated a substantial part of the independent skill labour etc., contributed by
the original author in creating the copyrighted work?” (the test)

- In order to determine whether there has been coping of a substantial part of the
work in non-literal copying, we must adopt a two-stage analysis. First, we must
separate ideas from expression, and thereafter we must determine whether the
defendant has copied a substantial part of the expression.

 In Temple Island v New English Teas [2012], we saw that the photograph on the top
of the screen received copyright protection. The defendant, who made their own
version of the photograph and reproduced it on boxes of tea, were found to have
infringed the owner’s right of reproduction. It was held that the defendant had
copied a substantial part of the original work.

- The court found a number of similarities:

 The use of the Routemaster bus driving right to left

 The riverside façade of the Houses of Parliament
 Westminster bridge
 People visible in the distance
 No other traffic
 A bright red bus against a black and white background
 Strong skyline.

- The court also acknowledged a number of differences:

 C’s work includes arches and the river
  C’s work includes steps in the foreground and the lamppost
 The angle of the shot is somewhat different.
 The bus is placed slightly differently (centre right and not centre left).
 Nevertheless, the court held the similarities were sufficient to amount to a
substantial part.

4. Impact of EU Law?

- The issue of substantial part is another area where EU copyright law may influence
or change UK law.
- In Infopaq, we see the court tying the rule of reproduction in part to the concept of
originality. And, as we have previously seen, the UK and the EU have different
standards of originality: the EU requires, arguably, a higher standard of originality. In
Infopaq, the court held that the defendant would only reproduce the work in part, if
the reproduction copied a part of the author’s own intellectual creation.

Summary

- Infringement requires:

1. Copying (not independent creation)

2. Substantial Part