When Does Copying Infringe Copyright?

//When Does Copying Infringe Copyright?

When Does Copying Infringe Copyright?

A Spat at Bedtime…

legal updateIn late November 2017, retailer John Lewis and children’s author Chris Riddell were parties to an ‘online copyright spat’. The issue was whether or not the department store had copied the former Children’s Laureate’s beloved character Mr Underbed, in creating the star of their Christmas advert, Moz the Monster.

Many agreed with the author that there was more than a passing resemblance between the two. Riddell’s comments online showed that he was clearly aggrieved by what he felt to be a theft of his intellectual property. The response from John Lewis was unapologetic in its defence of Moz.

So, who is right?

Copying an Idea vs Copying Protectable Intellectual Property

To understand this in a legal context, we need to understand what copyright actually protects. At a basic level, the difference between what is and isn’t protected by copyright is whether something is an expression of an idea, or merely an idea itself.

So for example, I might have a ‘great’ idea for a painting – perhaps a painful commentary on 2018 society; something involving millennials and avocados. If you and I discuss this, and you pick up your paintbrush and create such an artwork, you may have stolen my idea, but you will not have breached my copyright. If I subsequently make a print of your painting, and sell it online, I will have breached your copyright.

The tricky part is deciding where the boundaries lie. Especially where the fundamental elements of an item of IP might be universally familiar, like with artwork or business processes.

John Lewis’s response was quick to point this out: monsters hiding under children’s beds is a common western mythical tale. At this level, it’s easy to say that Riddell’s accusations were a bit far-fetched – but what about as we start to look closer?

Most stories of monsters under the bed are a source of fear for children, but Mr Underbed and Moz are both friendly characters, living happily alongside small humans. Is this an idea in itself, or is it an expression of the fundamental idea? Outside of litigation, this is likely to interpreted differently by one person to the next. John Lewis’s response was clear in noting that certain elements of the story differed in the way they expressed the well-worn idea. The more cynically inclined might consider these differences to be carefully engineered to avoid copying certain details!

What about the look of the monsters themselves? This is definitely an expression of an idea, and could potentially be open to copyright protection. They’re both big and round, with blue fir and bulbous red noses and have two triangular white teeth poking out of their mouths and over their lips. Are these universal depictions of monsters? Or could it be argued that the artistic rendering of Moz the Monster copied that of Mr Underbed?

It seems that Riddell is happy to take the dramatically increased sales of Mr Underbed books that resulted from this publicity as sufficient payment for the alleged infringement. Perhaps, though, if his complaints had been directed more specifically to elements that are more clearly protectable by copyright, his arguments might have carried a little more weight in legal terms.

Ok, so what about me?

If you’re considering action based on copyright infringement, hopefully you’ll have already read our previous post on the pitfalls of litigation.

You’ll also need to consider whether the intellectual property right that you think has been infringed is a clear and defensible right. Has someone copied the basic idea underlying your work, or a more tangible part of what you have created?

This line of thought will also help you in deciding what you need to protect during your everyday dealings, particularly when it comes to the subject of the NDAs you sign.

And of course, if you’re considering creating something ‘inspired by’ someone else’s IP, you’ll want to tread carefully to ensure you don’t infringe their rights. Or you might find yourself fearing the worst monster of them all, litigation! We’re here to guide you through this process and create contracts to protect your intellectual property so take the first step and call us.

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Fraser Gleave
Junior Commercial Contracts Consultant

2018-02-22T15:20:36+00:00

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