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England and Wales Patents County Court
You are here: BAILII >> Databases >> England and Wales Patents County Court >> Abraham Moon & Sons Ltd v Thornber & Ors  EWPCC 37 (05 October 2012)
Cite as:  EWPCC 37
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7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| ABRAHAM MOON & SONS LIMITED
|- and -
|(1) ANDREW THORNBER
(2) STEPHEN THORNBER
(3) ANDREW SLIPPER
(4) SUSAN MUNNS
(5) NB FABRICS LIMITED
Jonathan DC Turner (instructed by Taylors) for the Defendants
Hearing dates: 9th, 10th July 2012
Crown Copyright ©
His Honour Judge Birss QC:
The general law
The first step in an action for infringement of artistic copyright is to identify those features of the defendant's design which the plaintiff alleges have been copied from the copyright work. The court undertakes a visual comparison of the two designs, noting the similarities and the differences. 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 to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are commonplace, unoriginal, or consist of general ideas. If the plaintiff demonstrates sufficient similarity, not in the works as a whole but in the features which he alleges have been copied, and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying.
However in the end, beyond stating that the matter is one for the civil standard of the balance of probabilities, it is impossible to lay down any sort of general proposition. Speaking entirely generally, it seems to me that the more strikingly similar two works may be, the more likely the proposition may seem that there has been copying, and that will mean that one might expect even more cogent evidence to rebut such a case than one might expect in a different case in which the similarities are less striking. It can only ever be a matter for weighing up the evidence.
The issues of primary fact
i) The origin of Skye Sage
ii) Mr Murphy and Mr Pickles
iii) The origin of Spring Meadow
The origin of Skye Sage
Mr Murphy and Mr Pickles
The origin of Spring Meadow
Apply the law to the facts
i) The Skye Ticket Stamp.
ii) The original patchwork blanket representing the Skye plaid in a number of colourways known as the Skye Section Range.
iii) The fabric sample from the Skye Section Range in the Sage colourway.
The Skye Ticket Stamp as a literary work
"Finally, it is convenient to mention here the literary copyright which Lambretta claims in the written specifications at the bottom of LMK 5310 and the more extensive specifications in the second half of the Specification Document. Those specifications formed, in substance, directions to the manufacturer as to the manner in which to produce the Lambretta Track Top. It is clear, in my judgment, that the making of a garment according to those instructions cannot in law constitute an infringement of copyright by reproducing the literary work in a material form: 1988 Act, s.17(1) and (2). The point is lucidly and simply explained in Laddie, Prescott and Vitoria at para.3.148:
'The instant problem is quite distinct from the case of a literary work consisting of a series of instructions which do not describe an end product but only say how it is to be brought about—a recipe for making a rabbit pie, to take one judicial illustration. There, the end product does not reproduce the work in a material form—to follow the instructions is not to reproduce them, but merely to perform them. To adopt a mathematical expression, the instructions do not 'map on' to the end product. The literary skill and labour has not been taken.'"
Skye Ticket Stamp as an artistic work
Section 51 of the 1988 Act
The Skye Section Range
The liability of Art of the Loom (the first to fourth defendants)
i) Art of the Loom issue copies to the public and are caught by s18 of the 1988 Act;
ii) Art of the Loom are jointly liable with the fifth defendants as a joint tortfeasor.
iii) Art of the Loom authorise the copying done by the fifth defendant and are caught by s16(2) of the Act.
iv) Art of the Loom are liable for secondary infringement as the rolls of Spring Meadow fabric they sold were infringing copies of Abraham Moon's copyright, sold with knowledge or having reason to believe that they were infringing.
Section 18 – issue to the public
Section 97 of the 1988 Act
(The colours have not reproduced well in these images)