Jonathan DC Turner
Three Stone Chambers
3 Stone Buildings
London WC2A 3XL, UK
Tel: +44 (0)20 7242 4937
This is a copy of an article written in November 2000. It is not guaranteed to be up-to-date when downloaded. Copyright is reserved by the author and moral rights have been asserted. The article may be copied and distributed provided this done free of charge and in relation in the whole article, including details of authorship and this notice, without any amendments.
Many creative geniuses have drawn on the work of others. From Homer’s Iliad to Picasso’s Dejeuner sur l’Herbe, great works have been based on earlier efforts. Shakespeare’s Romeo and Juliet transformed a version of the tale by Da Porto, and was itself reworked in the musical West Side Story. But when is it lawful to draw inspiration from the work of others?
A rare decision of the House of Lords in a copyright case at the end of last year shed some light in this difficult area. In this case a company called Washington DC copied a fabric design of Designers Guild, but every feature was altered in some way.
The Court of Appeal considered that the designs were not sufficiently similar for there to be infringement. They cited the well-known maxim that copyright does not exist in ideas, only in their expression. They held that the expression of ideas in the Designers Guild’s design had not been reproduced.
The House of Lords disagreed. Lord Hoffmann said that the distinction between ideas and expression must be handled with care. Every element of a work is the expression of an idea, and copyright can be infringed by copying a combination of those ideas even though they are expressed in a different way, as where the plot of a novel is used in a film.
According to Lord Hoffmann, ideas are not protected by copyright in two types of case: if the ideas are not artistic, literary, dramatic or musical – for example an invention can only be protected by taking out a patent – or if they are not original. It is easier to recognise originality in detail than in a basic concept – or, as Lord Hoffmann put it, recalling Isaiah Berlin’s famous essay, “copyright law protects foxes better than hedgehogs”.
An example of an idea which was too basic to be copyright was the technique of “jump cutting” a film of a dance used in a Guinness advertisement. Although this striking technique was derived from a film by Mehdi Norowzian, his case was dismissed by the Court of Appeal. They pointed out that copyright would not have been infringed by copying the technique of pointillism from Seurat’s La Baignade, Asnieres.
Copyright is, however, infringed if a substantial part of a copyright work is copied. Quality is more important than quantity and in some cases copying a fairly small amount has been held to infringe. Rudyard Kipling successfully sued for the use of one verse of his poem If in an advertisement for Sanatogen pills. A newsreel of a school band playing 28 bars of Colonel Bogey was also held to infringe.
It is a basic principle of intellectual property law that a work which is original in its own right can still infringe rights in an earlier work. As was said in a patent case “The superadding of ingenuity to a robbery does not make the operation justifiable”.
So it is no answer to a copyright claim for an artist to say that he has created a masterpiece. A separate copyright exists in the new work, but it infringes copyright in the earlier work if it reproduces a substantial part of it without permission. If modern copyright laws had been in force in Shakespeare’s time, he would have had to negotiate for the rights in some of the materials which he used. But he would also have benefited. The leading American textbook, Nimmer on Copyright, considers that West Side Story would infringe the copyright in Romeo and Juliet if it were still in force and not licensed.
Copyright can exist in very simple works. In one case a drawing was protected even though it was little more than concentric circles. Copyright may even have existed in the simple surface graphics of Campbell’s soup tins. If so, Andy Warhol could have infringed if he had made the famous works in England without Campbell’s consent. There is an exception for incidental inclusion in an artistic work, but Warhol’s use of Campbell’s cans was hardly that. It could, however, be argued that Campbells implicitly consented to people making pictures of their products.
Copyright does not last forever. Currently most works are protected for the life of the author and a further 70 years. This was recently extended from 50 years by EU legislation on the dubious ground that the 50 years had been intended to provide for two generations and needed to be increased in view of longer life-expectancy.
The National Gallery’s Encounters exhibition of contemporary responses to Old Masters was therefore safe, assuming the Old Masters had all been published long ago. There is, however, a separate publication right lasting 25 years where someone publishes a work for the first time after the expiry of copyright protection. Copyright protection is effectively reduced to 25 years where an artistic work is reproduced commercially with the consent of the author.
Copyright does not exist in all objects. For example, it does not exist in three-dimensional designs unless they are sculptures or works of architecture or artistic craftsmanship. In one case a furniture manufacturer argued that its prototypes were copyright. Its witnesses said that the design was vulgar but younger people were very attracted to it. The House of Lords held that they could not be regarded as works of artistic craftsmanship. On this basis, Damien Hirst did not infringe Humbrol’s copyright even if he did reproduce one of its toys in his bronze torso, Hymn, unless a model or prototype for the toy was protected as a sculpture.
Three-dimensional designs can, however, be protected by design right in the UK. Like copyright, this right arises automatically without having to be registered. However, the term is much shorter: 15 years from the design or 10 years from the first marketing, whichever is earlier. In addition, the requirements for protection and the test of infringement are stricter. A copy only infringes if it is not substantially different from the original design. Designs can also be registered for up to 25 years protection if they are novel and appeal to the eye.
A creator of a copyright work also has moral rights to be identified as the creator and to object to mutilation. These rights are inalienable, but the right to be identified has to be asserted in writing and the right to object to mutilation can be waived.
For example, Op artist Bridget Riley’s moral rights were infringed when some of her works were copied in illustrations accompanying a newspaper article about how drugs might be marketed if they were legalised. The small-scale and partial reproduction lost the optical qualities of the original.
© Jonathan DC Turner 2000
 Designers Guild v Russell Williams Textiles  FSR 803;  FSR 121 (CA);  1 WLR 2416 (HL)
 Norowzian v Arks  FSR 363
 Kipling v Genatosan (1923) MacG Cop Cas (1923-28) 203
 Hawkes v Paramount  Ch 593
 Wenham Gas Co v Champion Gas Lamp Co (1891) 9 RPC 49, 56 (Bowen LJ)
 Solar Thompson v Barton  RPC 537
 Copyright Designs and Patents Act 1988, s.31
 EC Directive 93/98
 Copyright and Related Rights Regulations 1996, Regulations 16-17, implementing EC Directive 93/98, art 4
 Copyright Designs and Patents Act 1988, s.52
 Hensher v Restawile  AC 64,  RPC 31
 In Wham-O Manufacturing v Lincoln Industries  RPC 127, the New Zealand Court of Appeal held that a wooden model for making a mould for the production of Frisbees was a “sculpture”, but many people think that this is wrong