What is actually copyrightable? – McCormack Trading v. Goldmark Trading 22 January 2015
What is actually copyrightable? In a recent IPEC case the issue of what is actually copyrightable arose. Most copyright cases are mostly consumed with what is actually copyrightable? Only about four of the first few reported intellectual property cases of 2015 have caught my attention enough to be worth a quick article review, McCormack Trading v. Goldmark Trading is definitely one of them.
SO WHAT IS ACTUALLY COPYRIGHTABLE? Judgment was handed down by His Honour Judge Hacon on the 22 January 2015. The judgment is worthy of note for the specific reason that the firm gets a lot of copyright related enquiries from authors/owners of – books, TV commission proposals, film scripts, websites and mobile apps to name a few. Naturally I explain that only certain works are capable of copyright protection and there are other hurdles including original authorship to get over. What McCormack does is to give an actual recent working example of how copyright works in practice.
The facts were that McCormack Trading Ltd, which is really just one guy who is sole director and shareholder, alleged that three defendants, Goldmark Training Service Limited, Ruth Goldsworthy and Hipposome Limited were jointly liable for copying without consent a training manual published by McCormack in 2010.
HH Judge Hacon’s judgement set out the main issues that were being alleged including: (i) That the training techniques demonstrated in the text and photographs of the manual were copied. (ii) That certain works including the photographs in the manual were copied. Essentially literary and dramatic works. Notably, there was also a claim for additional damages pursuant to s.97(2) of the Copyright Designs and Patents Act 1988.For more information on UK Copyright Law refer to the Copyright Designs and Patents Act 1988 – UK Copyright Law
The following issues are worthy of note.
1. Goldmark was not granted a licence to copy any of the photographs which were copyrightable (which incidentally were taken by Lane Photography a third party).
2. McCormack’s case regarding literary work copyright infringement based on the McCormack notes failed as it lacked any real substance as a literal work. HH J Hacon commented that it may have succeeded had the claim been based on the physical catalogue itself.
3. McCormack’s case that its techniques in sequences were a dramatic work was dismissed. McCormark referenced the notes and photographs. However since the notes had been held not to be capable of copyright then the McCormack techniques were also not capable of being a dramatic work. Again HH J Hacon suggested that had the techniques been accompanied by a suggestion of a performance of some kind then this might have changed the position. An arbitrary sequence could not collectively become a dramatic work.
4. Finally, as the sole director and half owner of Goldmark, Mrs Goldworthy was jointly liable. The third defendant having already been discontinued from the proceedings.
My view is that this judgment is useful for what was said as to how the McCormack case could have been pleaded, and the work itself organised so as to be capable of copyright protection. It is well worth a read.
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