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IV. INFRINGEMENT AND ENFORCEMENT
Nonetheless, it seems to me that where the whole of the photograph is reproduced,
as in the present case, it would be an infringement. After all, it would seem rather
strange if, as I have concluded, copyright exists in the whole photograph, there is no
infringement in a case involving reproduction of the whole photograph.
- INFRINGEMENT IS NOT AVOIDED EVEN IF THE DEFENDANT
ADDS HIS OWN ORIGINAL WORK TO THE WORK TAKEN
An infringer who takes the whole of a plaintiff’s work does not avoid
infringement by changing the work, whether for better or for worse.
EXAMPLE 1:
The plaintiff, Schweppes, owned copyright in the “Schweppes” tonic water
label. The defendant copied the label for its “tonic” bubblebath, but substituted
“Schlurppes” for “Schweppes”. The defendant claimed there was no
infringement because of the original mental labour it had expended on creating
this parody of the plaintiff’s work. The court nevertheless found infringement:
Schweppes Ltd v. Wellingtons Ltd [1984] F.S.R. 210 (U.K.: High Court)
MR JUSTICE FALCONER:
The fact that the defendant in reproducing his work may have himself employed labour and
produced something original, or some part of his work which is original, is beside the point if,
nonetheless, the resulting defendant’s work reproduces, without the licence of the plaintiff, a
substantial part of the plaintiff ’s work. The test every time, in my judgment, is, as the statute
makes perfectly plain: Has there been a reproduction in the defendant’s work of a substantial part
of the plaintiff ’s work?
EXAMPLE 2:
The plaintiff, a Scottish lawyer, drafted and published a set of documents for
buying, selling and conveying land. The Scottish law society, to which he
belonged, made some stylistic improvements to the forms and gave away
copies of these forms to other lawyers, without the plaintiff’s authority. The
society was held to have infringed the lawyer’s copyright, despite any
improvements: Alexander v. Mackenzie, (1847) 9 Sess. Cas. 748 (Scotland).
- INFRINGEMENT OCCURS IF A “SUBSTANTIAL PART” OF THE
WORK IS TAKEN
- “Substantiality” is judged both quantitatively and qualitatively
Hager v. ECW Press Ltd (1998) 85 C.P.R. (3d) 289 (Canada: Federal Court,
Trial Division)
[The plaintiff wrote Honour Song: A Tribute, a book about the exploits of
Canadian native people. One 9-page chapter dealt with the popular singer
Shania Twain and was based on background research and interviews that
Hager had conducted with the singer. Shortly afterwards, the first defendant
