I will assess if Alfred qualify under the UK copyright law to be protected and I will examine if he has the authorship and ownership of his drawings. Given Alfred is an artist in the UK, he is qualified to be protected by the UK copyright law. Under the Copyright, Designs and Patents Act 1988, the original literary, dramatic, musical, artistic works of authorship including sound recordings, films, broadcast, published editions, Computer Programs are protected.
Aldred’s drawing should be original to be protected. Section 1 (1) (a) of CDPA 1988 Act states that copyright subsists in “original literary, dramatic, musical or artistic works.”[1] And Section 4 (1) (a) defines Artistic work irrespective of artistic quality as a graphic work, photograph,” which drawings and painting are included. Moreover, In order for a work to be protected in United Kingdom, it is required to show that his work is suitably qualified. According to Section 154 (1) of CDPA 1988, it is necessary that the author be connected to the UK at the material time.[2] It seems reasonable to assume that Alfred and Sublime are British Citizen.[3]
Under the UK law, originality considers the application of labour, skill or effort. Moreover, the threshold is very low and it does not need to be creative, innovative or novel. Accordingly Alfred drawings have originality which may protect by copyright law, as he applied his knowledge, effort and skill for providing them and he drew them from sketch.
In CDPA 1998, the author of the Artistic work is defined as the person who creates the work[4], and in order for Alfred to be classified as an author, he should show that the labour, skill and effort contributed to the work which in this case Alfred has two witness; 1- his friend Beverly and his employer Sublime. Nevertheless, under section 11 (2) Where an artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work. Alfred drew “Bingo Wings” when he was in his office hence, it is necessary to determine whether his work was created in the course of employment or not.
It is necessary and very important for the courts to determine if a work has been made in the course of employment or whether the making of the work falls within the types of activities that an employer could reasonably require from and employer. In Stevenson Jordan v. MacDonald[5], Morris LJ stated that the employer had paid the expenses of the lecture, which the employee could have prepared the lectures in the company’s time, and employer used employee library and had the lecture typed up by company secretaries, and that the lectures were a useful accessory to his contracted work.
Furthermore, in the similar case, similar reason was applied in Noah v. Shuba [1991] FSR 15. There was an important fact which influenced the decision of the court that Dr. Noah had written the draft at home in the evenings and at weekends. Accordingly, Mummery J held that the guide had not been written in the course of Noha’s employment.
Nevertheless, answering the question of whether a work is made within the course of employment depends utterly upon the contract of the employment.[6] As in the case of Missing Link Software v. Magee, an employee wrote the software for employer outside of work time and he used his own equipment, which the court held that the software was made in the course of his employment and thus owned by his employer. As it was given in the Alfred case, there is an agreement between Alfred as and employee and Sublime as and employer which stated that Alfred agreed to create such designs as Sublime employer from time to time, if he required. Moreover, given that Alfred has worked for Sublime since 1990 for creating and designing some material, consequently and according to Section 11 (2) 0f the 1988 Act, the owner of copyright is Sublime if Alfred was working at the his office and in the course of his employment. Accordingly, he drew “Bingo Wings” in 1997 at his office and used employer material and budget and also, it seems he was asked to drew “Bingo Wings”, hence Sublime is the owner of “Bingo Wings”. However he drew “life’s a Lottery” at home on a Saturday afternoon in 1998 which the employee did not expect Alfred to draw it. According to Noah v. Shuba[7] and Stevenson Jordan v. MacDonald[8] cases, it appears that Alfred did not create these works in the course of employment. Consequently, Alfred retains ownership of copyright in “life’s a Lottery”.
According to section 16-21 of CDPA 1988, some rights have been granted to the owner of a work, such as: 1- reproduction right, 2- distribution right 3- rental or lending right, 4- public performance right, 5- right of adoption.[9] Consequently, Alfred was able to give the copy and distribution rights of “life’s a Lottery” to his friend.
It is clear that photocopying of Alfred drawing by Charm Theatre is a reproduction. The reproduction is “Objectively similar”[10] and non-identical to the copyright work, however “objective similarity” means infringing the relevant part of defendant’s work which must be a copy or representation of the whole or part of the original work.[11] Furthermore, Charm Theater copied substantially part of Alfred “Life’s a Lottery” drawing which set out the work of Charm Theater is not original.
In designers Guild v. Williams [2000] 1 WLR 2416, the claimant produced fabric design in 1994 and it was made up of drawn pink and yellow strips with flowers scattered haphazardly across the strips. The defendant was selling a fabric one year later which was very similar in some factors. However; there were several differences[12] between the two designs. It based on vertical stripes alternating colors and with flowers and associated stalks and leaves scattered across the strips. Furthermore, the judge on this case found that the defendant had had an opportunity to copy the claimant work.
In order to persuade a court, a claimant will typically rely on similarities between the work and the court may accept that if the similarities are very numerous. Moreover, still Alfred can show that the defendant had familiarity with the work which defendant should prove that the work was created independently and created from original. However, the defendant may demonstrate that there are factor similarities other than copying. In this case both design based on a lottery wheel, although the arrow in the shape is different and point at a card depicting money.
Moreover, the relationships between parties are important. In this case both parties competed with each other and copy of the Alfred’s work can be justified on the base that the defendant may tried to use reputation of claimant’s friend. However, it is for the court to decide whether the part taken is substantial or not and the court may use expert to define the issue. Furthermore, the courts should decide about one of the important and difficult issue which is about to define how much the idea is original.
Given the fact of the case, the review in the London Newspaper, the End of The Day, which accompanying by a cartoon and some words, are original and protected itself by copyright. The reporter did some effort and skill to change the drawing into the cartoon, hence, the report is protected by copyright. Moreover, according to Section 30 (2) fair dealing with a work for the purpose of reporting of the current events does not infringe the copyright if it is accompanied[13] by a sufficient acknowledgement[14].
The owner of “Bingo Wings” is Sublime and according to Alfred and his employer he agreed to waive all moral rights which according to CDPA 1988 can not be waved. Moral Right is the right to object against false attribution.
Publishing the work by Ptarmigan Publishing Ltd without seeking any permission for distribution or copy rights, is absolutely infringing the copyright law although the whole image published slightly yellow and the illustration is reduced in size and quality which Ptarmigan Publishing Ltd published a copy of the whole Sublime’s work and distribute it although the quality had been reduced and the color has been changed.
However, for the attribution right to be infringed, it is necessary to show that the author has not been properly identified which the book attributed Alfred as the designer.
Conclusion:
According to section 96 and 97, Alfred and Sublime as the copyright owner can bring an action against who infringes the copyright.
On this case At first instance I advise Sublime for asking the court of an injunction and make a claim against Ptarmigan Publishing Ltd as it has the ownership of “Bingo Wings”. Alfred can make a claim for damages against Charm Theater which he can show that at the time of the infringement Charm Theater knew the drawings protected.
5
[1] S.1 (1)Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a)original literary, dramatic, musical or artistic works. And Under Copyright Act 1911, Section 1(1), provides for copyright in “every original literary dramatic musical and artistic work.”
[2] Intellectual Property law, Second Edition, Bently and Sherman, Oxford 2004, Page: 108
[3] Section: 154 (1)A work qualifies for copyright protection if the author was at the material time a qualifying person, that is— (a)a British citizen, a British Dependent Territories citizen, a British National (Overseas), a British Overseas citizen, a British subject or a British protected person within the meaning of the [1981 c.61.] British Nationality Act 1981, ……
[4] Section 9 (1)
[5] (1952) 69 RPC 10
[6] Ibid Page 125.
[7] [1991] FSR 15
[8] (1952) 69 RPC 10
[9] Copy right, Designs and Patents Act 1988, Section 16.
[10] Francis Day Hunter v. Born [1963] Ch 587, 623.
[11] Bridge Foley v. Ellot [1982] RPC 433
[12] “Judge found that there were seven similarities between the two designs. Both design were based were based on strips with scattered flowers, both were in impressionistic style, showing brushwork; in both the strips had rough edge ; in both the strips showed through some of the petals; in each , the flower heads compromised a strong blob and in each the leaves the leaves were in two shades of green.
[13] CDPA 1988, Section 30 (3)
[14] To fall within the above defense, the report in London Newspaper must take place in relation to an event that is current. Hyde Park Residence v. Yelland [1999] RPC 655,661