25
I. COPYRIGHT: CASES AND MATERIALS
picture as an integral part. I will only mention a few important differences. There is no sun and
no shadow in the painting and no attempt to produce shadow. Having jettisoned the shadow the
artist has adopted bright red to show blood and fury. The left-hand cock has almost dissolved in
flame. In my view the effect is entirely different from the photograph. There are some similarities
such as the positions of the birds; the claws are similar, of course. I think these factors bring in
the art of the artist here and show that he has used the plaintiff ’s work as an inspiration; that he
has not copied it, but has made a new work of art of his own.
LORD JUSTICE SOMERVELL, for the majority of the Court of Appeal,
agreed with the above passage and added:
A man takes a photograph of a procession or the laying of a foundation stone. He, of course, has
chosen when and from where the photograph should be taken. The relative position of those in
the procession, or their taking part in the ceremony is not, however, his work, or his design, in
the sense in which the relative position of the figures on the ceiling of the Sistine chapel was the
work and design of Michelangelo. The order and arrangement of the procession has been, no
doubt, carefully planned and designed by someone else. It is an individual’s work that the Act is
intended to protect. I do not think that a painter who was minded to make a picture of the
procession, in his own style, would be committing a breach of copyright if he used the
photograph to enable him to get accurately the relative positions of those taking part. What he
would be taking would not be a substantial portion of the plaintiff ’s work. At the other end of the
photographic scale one can imagine a case where the photographer has made an original
arrangement of the objects animate and inanimate which he photographs in order to create a
harmonious design representing, for example, Spring. Here the design would be his work. The
position of the birds here is betwixt and between. It is, I think, nearer to the former than the latter
category.
LORD JUSTICE ROMER dissented:
A cock-fight is neither a static nor a leisurely affair but a combat of rapid movement, involving,
one may suppose, attack and counter-attack in which the birds deploy to their greatest advantage
such armament of wing and claw as each possesses. ... The plaintiff ’s photograph appears to me
to have captured a very striking attitude, more especially perhaps with regard to the bird on the
right which, with outspread wings and thrusting claws, is leaping to the attack whilst his
adversary, with pinions raised, is apparently bracing himself to meet the assault. I cannot bring
myself to think that these respective attitudes of the two antagonists are a relatively unimportant
feature of the photograph. The photograph is of two birds engaged in the one activity for which
they were reared and trained; and I cannot but think that the positions in which the camera caught
them are of the essence of the plaintiff ’s skilful presentation of that activity.
It is clear that in certain photographs of bird or animal life the attitudes of the subjects are the
prime essentials. May people nowadays are familiar with bird photography, to which much time
and thought have been devoted in recent years. Is it to be said that any artist is entitled to trace
from published photographs of this character the outline or forms of birds at or approaching the
nest (however rare the birds might be) and use them as the basis for paintings of his own? I
should have thought that, by so doing, he would be infringing the copyright in the photographs
- and none the less because he painted in a background, or other features, of his own creation.
Or assume the case of a man who preferred photographing big game to shooting them and was
fortunate enough, and sufficiently skilled, to take a series of photographs of some incident which
had rarely, if ever, been caught by a camera before, for example, a battle between a tiger and an
elephant; would the figures of the animals be at the disposal of any artist who wanted to paint a
similar incident but was reluctant to visit the jungle for his material? Here again, the copying of
