originate another work in the same general form, provided he does so from his own resources
and makes the work he so originates a work of his own by his own labour and industry bestowed
upon it. [T]he question ... , where the matter of the plaintiff ’s work is not original, is how far an
unfair or undue use has been made of the work? If, instead of searching into the common sources
and obtaining your subject-matter from thence, you avail yourself of the labour of your
predecessor, adopt his arrangements and questions, or adopt them with a colourable variation, it
is an illegitimate use”. ...The author of a historical work must, I think, have attributed to him an intention that the
information thereby imparted may be used by the reader, because knowledge would become
sterile if it could not be applied. Therefore, it seems to me reasonable to suppose that the law of
copyright will allow a wider use to be made of a historical work than of a novel so that
knowledge can be built upon knowledge. ...[A]n author is not entitled, under the guise of producing an original work, to reproduce the
arguments and illustrations of another author so as to appropriate to himself the literary labours
of that author...I find as a fact that in writing five of the prologues to The SpearMr. Herbert made use of The
Spear of Destiny animo furandi, that is to say, with an intention on his part to take from The
Spear of Destinyfor the purpose of saving himself labour. ...[H]e has deliberately copied the
language of the plaintiff on many occasions. To a more significant extent he has adopted
wholesale the identical incidents of documented and occult history which the plaintiff used in
support of his theory ... He did this in order to give his novel a backbone of truth with the least
possible labour to himself. In so doing he annexed for his own purposes the skill and labour of
the plaintiff to an extent which is not permissible under the law of copyright. The defendant has
clearly infringed the plaintiff ’s copyright.- Taking only an insubstantial part, however, does not infringe
If it is infringement to take a “substantial part” of a work, it is naturally not
infringement to take a part that is not“substantial.”EXAMPLE:In the Antiquesportfolio.comcase, mentioned above, the defendant had also
scanned some photographs, from which it made line drawings, in effect
tracings, of the furniture depicted in the photograph, but eliminating all the
photographic detail. These drawings were used in logos for the plaintiff. The
infringement claim in respect of these drawings failed:Antiquesportfolio.com v. Rodney Fitch & Co. Ltd [2001] E.C.D.R. 51 (U.K.:
High Court)MR JUSTICE NEUBERGER:[T]he Defendant has traced, or arranged for the tracing of, the outline of various objects shown
in a photograph in the Encyclopaediaand has then substantially reproduced that outline, with a
fairly thickly-delineated and somewhat simplified shape. Within most of these outlines, such as
jugs and candelabra, there is no internal detail whatever; within others, such as sofas and pistols,
there are some, albeit very limited, lines within the outline. ...
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