Page 84 - Law and the Media

Copyright
for evidence in each case. The court is not the appropriate judge of aesthetic appeal.
However, it is the proper function of the court to decide on hearing the evidence whether an
object falls within the definition (George Hensher Ltd v Restawile Upholstery (Lancs) Ltd
(1976)).

Originality
Literary, dramatic, musical and artistic works must be original before they can be protected
by copyright. The essence of originality is that the author of the work must have devoted skill
and labour to its creation. This is called the ‘sweat of the brow’ test. There is no aesthetic
requirement.

A slavish copy of an existing work will not be protected, nor would the writing out of the
letters of the alphabet, or the numbers 1 to 100. However, the creation of a new typeface, or
font, of letters and numbers would be a copyright work. A musician who copies a folk tune
that has no copyright may have difficulty in showing it to be sufficiently original to prevent
others from copying his work. If a person produced logarithmic tables by carrying out all the
necessary calculations and work independently, the tables may look exactly like an existing
set. However, both works would be entitled to copyright protection. The second set would
infringe the first only if copied from it. Similarly, if two people independently painted a
picture of the same country scene or still life, the finished works may be very similar but both
would be original, having been created by independent skill and effort.

Two photographers may take photographs of the same event from more-or-less the same
angle and very similar photographs may appear in rival newspapers. Each newspaper could
prevent the copying of its photograph, but could not prevent other photographers from going
out to take similar photographs for themselves.

If two literary or artistic works are objectively similar, it may be difficult for the maker of
the later work to prove that it is not copied from the first. Articles, books, pictures, songs,
storylines and films that have a striking similarity to each other suggest copying. It may be
difficult for the author of the work to prove that it was independently created, not copied. It
is wise, in such cases, to keep drafting notes and copies of the various stages of development
of an idea. Enclosing the work in a letter sent by registered post or enclosing it in an email
sent to a trusted person or organization or back to the author himself may assist in
establishing the date when the work came into existence.

The difficulties that may arise when two works look or sound alike are illustrated in a case
concerning the composer Vangelis (EMI v Evangelous Papathanassiou (1987)). The
composer of a piece of music called City of Violets claimed that Vangelis had heard his
music and subconsciously copied in for the theme music for the film Chariots of Fire. The
court listened to both pieces of music, compared them with the assistance of expert
evidence, and concluded that Vangelis had not infringed the earlier copyright. Although the
dispute ended in Vangelis’ favour, the case took several years to reach trial and involved
high legal costs.
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