Antiques Trade Gazette 79 back page A LAWYER WRITES What exactly is breach of copyright?


■ What may, at first, seem a simple case of comparison between the original and the copy can be anything but, explains MILTON SILVERMAN


AN art dealer could easily find himself in breach of copyright if he doesn’t think ahead: he may have paintings on consignment, under contract, or even own them. But if, for example, he publishes a catalogue of images of a contemporary artist, he will be in breach of copyright unless he has the artist’s permission. The dealer may own the pictures, but the artist owns the copyright unless there is a deal to the contrary. Recently there has been some publicity


concerning a photographer suing for breach of copyright over images used by a street artist in Los Angeles. This seems to be fairly novel, although there is no reason why a street artist should not be just as capable as anyone else of infringing copyright. Across the Pond, the street artist is


raising a US defence of “fair use”, which is rather different from the defence over here of “fair dealing”. This defence of fair dealing allows for the reproduction of work for the following reasons: research and private study (non-commercial); criticism; review and news reporting. This may seem like common sense. I had to act as a mediator appointed


in a substantial claim for breach of copyright that was travelling inevitably towards a High Court trial. There was a great deal at stake for both parties and I felt a considerable responsibility to do my best. The role of a mediator is to seek to


facilitate a settlement, however unlikely that may appear. By way of preparation, I thought it


sensible to review the House of Lords’ judgment in one of the most important – some would say the most important – copyright case in recent years, namely, Designers Guild Ltd v Russell Williams (Textiles) Ltd. On reading their noble Lords’ venerable


judgments, I reflected that although most involved in the world of art have a rough idea about copyright, I am sure many would have absolutely no idea as to the intellectual gymnastics that the judges and noble lordships often have to perform. The Designers Guild case concerned


an alleged copying of a fabric design. A detailed examination was made of the particular nature of the pattern. The judges at the various stages in the High Court, Court of Appeal and House of Lords considered, in relation to both designs, how the stripes were placed, the spaces between the stripes, the brush-stroke technique and the ‘neo- Impressionistic styles’, how parts of flowerheads were represented by ‘a strong blob’ rather than ‘realistic representation’, and how leaves were painted in ‘two distinct shades of green, with similar brush-strokes’ in each design. The whole case is very relevant to breach of copyright in relation to a work of art. Even though they all came to the same


conclusion, their lordships in the House of Lords had very different approaches. Two of the Law Lords in particular went into some detail concerning copyright determination. The law of copyright is governed in the


UK by the Copyright, Designs and Patents Act 1988. Under Section 16 (3), for there to be an infringement there has to be


copying of a “substantial part” of the work in question. An interesting football pools case,


Ladbroke (Football) Ltd vs William Hill (Football) UK Limited from 1964, establishes that “substantial part” depends upon quality rather than quantity. When the Designers Guild case came


to trial before the High Court judge, he found that there had been enough copying to constitute a “substantial part”. He found that the design named Marguerite was a copy of the design named Ixia. The losing defendants then trooped off to the Court of Appeal where the three Lords Justices reconsidered the designs in detail. They concluded, in contrast to the High Court judge, that there had not been copying of a “substantial part”. Off went the plaintiffs to the House


of Lords. This tribunal consisted of five very eminent Law Lords who unanimously came to a different conclusion from the Court of Appeal. What’s more, in coming to their verdict, two of these Law Lords said very different things from each other. The following are small extracts from


the judgments given by the two Law Lords on how they thought “substantial part” should be determined: Lord Scott laid emphasis on comparing


whether the two works looked broadly similar. He referred back to the High Court judge who “did not find that the Ixia stripes, or that the Ixia flowers or leaves had been copied... or that any specific feature of Ixia had been copied. He simply found that the Ixia design had been copied”. Lord Millet took a rather different


approach. He said: “Once the judge has found that the defendants’ design


incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon the importance to the copyright work. It does not depend upon its importance to the defendants’ work... the pirated part is considered on its own... there is no need to look at the infringing work for this purpose (my italics)”. The best way to summarise Lord


Millet’s position is to quote him again: “The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely the result of copying than of coincidence.” Finally, Lord Scott criticised Lord


Millet’s approach, stating that the overall similarities between the two works were relevant. You may reasonably think, as I did


when writing this, that if the eminent members of the Court of Appeal and House of Lords could argue in such detail and at such length with each other, how on earth can a layman be expected to understand it all? Unfortunately incomprehensibility is no defence.


Milton Silverman is Senior Commercial Litigation Partner at Streathers Solicitors LLP, Wigmore St, London (0207 034 4200) with more than 20 years’ legal experience. He is heavily involved in work in the art, antiques and antiquities trade.


‘If the eminent members of the Court of Appeal and House of Lords could argue in such detail and at such length with each other, how on earth can a layman be expected to understand it all?’


LETTERS TO THE EDITOR Alert over email alerts


SIR – re ‘Our latest auction is online now’ emails. Could auctioneers across the land please look into an ever-increasing issue. When I email an auction house I automatically get included on their e-mailing list.


This isn’t a problem until you multiply it by the hundreds of auction houses in the world and it fast becomes one. Each time I reply to them wishing to un-subscribe and I’m sure this is done. However, It seems all I need to do is contact them again for another sale in the


future and I’m back on their list... and so the problem becomes clear. I’m sure they’re useful and welcomed by many, but people need the choice of un-


subscribing permanently. Please auctioneers try to resolve this, if only to cut down on your own inbox filling with people wanting to constantly un-subscribe.


Name and address supplied


SIR – It is a fact which I have never heard remarked upon, that Impressionist and later modern paintings, particularly the very costly ones, are usually framed in deeply carved, heavily gilded, 19th century or earlier frames. Perhaps the multi millionaires who


favour modern painting think that this is the most effective and impressive way to set off their trophies. Perhaps the old frames were left


hanging about when they ditched their 19th century academic paintings.


editorial@atgmedia.com In the wrong frame? Be that as it may, it does not explain


why the curators of the great art museums, the National Gallery, the Metropolitan, have seen fit to follow suit. Look at the Gauguin in the new exhibition at Tate Modern. You can hardly see the picture for the gilt frame.


Roisin Kearns London


The Editor reserves the right to amend correspondence where necessary for publication.


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