Copyright - designs based on photographs copied from third party - photographs sufficiently original for copyright protectionAntiquesportfolio.com Plc v Rodney Fitch and Co Ltd: ChD (Neuberger J): 10 July 2000
The claimants commenced proceedings on the ground that designs for a Web site, logo, brochure and advertising literature supplied by the defendants infringed copyright in that they were allegedly based on photographs contained in a book published by a third party.
The defendants contended that the claimants had no cause of action against the defendants unless the third party, whose copyright had allegedly been infringed, brought proceedings against the claimants.
Moreover, photographs of static objects were insufficiently original to be protected by s.
1(1) of the Copyright, Design and Patents Act 1988.
The claimants applied for summary judgment.Robert Onslow (instructed by Field Fisher Waterhouse) for the claimants.
Jonathan DC Turner (instructed by Lawrence Stephens) for the defendants.Held, dismissing the application, that it could not be right that the claimants had no cause of action against the defendants unless and until the third party made some objection to the claimants' use of the material; that the defendants were under an implied obligation to carry out the design work with reasonable care and skill and that obligation carried with it a duty to use reasonable care not to include material knowingly copied from a third party; that copyright did subsist in a photograph of a single static object; that the positioning of the object, the angle at which it was taken, the lighting and the focus were matters which satisfied the requirement for originality in the 1988 Act; and, that accordingly copyright did exist in the photographs, but for other reasons the claimants' application would be dismissed.