Principles of Copyright Law – Cases and Materials

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IV. INFRINGEMENT AND ENFORCEMENT

(the direct quotes from Shania Twain). I conclude, on these facts, that the use made by the

defendants of the plaintiff ’s work constituted the copying of a substantial part of that work (some

directly, some by colourable imitation).

• A small part of the copyright work may nevertheless be
  “a substantial part” of it

EXAMPLE 1:

The plaintiff kept a personal daily diary. Her husband found it, photocopied two

pages, and returned it. He refused to return the photocopies when the wife

requested. When the plaintiff sued for copyright infringement, the husband

denied that the two pages were a substantial part of the whole diary. The court

disagreed:

A. v. B. [2000] E.M.L.R. 1007 (U.K.: High Court)

MR JUSTICE LLOYD:

It seems to me that someone, such as Mr Richard Crossman,^1 who embarks on the making of a

daily diary has copyright in the first entry in his diary on the first day, and that entry, and each

successive entry, is still entitled to copyright protection, whether as a whole work in itself or as

a substantial part of the larger whole, however long the diarist goes on writing, and therefore

whatever the eventual bulk of the diary or set of diaries. Accordingly, I reject the defence that

the copies are not of a substantial part of the copyright work.

EXAMPLE 2:

The plaintiff owned the copyright in a musical march Colonel Bogey. The

defendants included an extract of the march in their news film. The march was

4 minutes long, and the extract the defendants used was 20 seconds long and

comprised 28 bars. The defendant claimed that the 5% of the plaintiff’s work

that had been used was not “a substantial part” of the work. The court

disagreed with the defendant:

Hawkes & Son (London) Ltd v. Paramount Film Service Ltd [1934] Ch. 593

(U.K.: Court of Appeal)

LORD JUSTICE SLESSER:

[T]his reproduction is clearly a substantial part of Colonel Bogey, looked at from any point of

view, whether it be quantity, quality, or occasion. Any one hearing it would know that it was the

march called Colonel Bogey, and though it may be that it was not very prolonged in its

reproduction, it is clearly, in my view, a substantial, a vital, and an essential part which is there

reproduced. That being so, it is clear to my mind that a fair use has not been made of it; that is

to say, there has been appropriated and published in a form which will or may materially injure

the copyright, that in which the plaintiffs have a proprietary right. ... “[M]ere honest intention

on the part of the appropriator will not suffice, as the Court can only look at the result, and not

at the intention in the man’s mind at the time of doing the act complained of, and he must be

presumed to intend all that the publication of his work effects.”

1 [Crossman was a Cabinet minister
(1964-70) in the British Labour
government. He kept an extensive
political diary, which was eventually
publishedposthumously after the
governmentlost a court battle in
1975 to suppress it. - Ed.]