IPC fails in landmark copyright case

The publishers of ‘Ideal Home’ magazine failed yesterday in a unique breach of copyright claim against rival title ‘Home’ at London’s High Court. Had Ideal Home won, the case could have had dramatic repercussions for the whole of the written media.

In the first case of its kind to come to court, IPC Media claimed that Highbury Leisure Publishing, a division of Highbury House Communications, had copied from its market-leading home improvement title.

The case was being closely watched by media lawyers, who felt that, if IPC succeeded in its claim, the door would swing open to a flood of similar claims between rival magazine publishers and possibly newspapers.

However, Mr Justice Laddie today ruled that IPC had come “nowhere near” making out a case that Highbury had copied its magazine. He said that the alleged similarities between the two magazines were “slight, scattered and superficial” and had been “exaggerated by selective excision”.

IPC, whose ‘Ideal Home’ magazine has run since 1920 and has a circulation of more than 270,000 copies, had asked the judge to rule that Highbury had breached its copyright with ‘Home’ magazine, which launched in 1995 and sells over 60,000 copies.

Opening IPC’s case in October, counsel Martin Howe QC told the judge: “IPC contends that the defendant has infringed its copyright in ‘Ideal Home’ magazine. The complaints relate to the front cover and a series of internal features within Home magazine. The claim relates to the design or ‘template’ of the magazine.

“IPC contends that Highbury has copied the key design features of the cover and of the relevant internal features, whilst in each edition putting in its own words or ‘copy’, in much the same way as those design features are carried forward from edition to edition of ‘Ideal Home’ itself.

IPC’s claim referred to particular similarities in the covers to the rival magazines, including similar strap-lines – ‘Britain’s best-selling decorating magazine’ on ‘Ideal Home’ and ‘The UK’s best decorating magazine’ on ‘Home – selections of photographs, and the use of a three digit number in the cover ‘hotspot’.

IPC claimed that the September 2001 issue of ‘Home’ used the hotspot “375 fresh new ideas for every room” when, only five months before, ‘Ideal Home’ had used the hotspot “375 new ideas for every room”.

IPC also made reference to similar use of fonts and similar layouts in a number of internal articles which they claimed breached their copyright.

However, lawyers for Highbury described IPC’s case as “extremely blinkered” and “arrogant”, claiming that anything that supports the theory of copying was relied upon while anything that was inconsistent with the theory is ignored.

Highbury argued that IPC was trying to assert ownership of general ideas, which in this case were common design devices and techniques which any experienced designer or editor in the home interest magazine field knows. Highbury claimed these ideas should remain available for designers to use.

Backing Highbury today, the judge said: “IPC falls far short of making out its allegation of copying. Once it is appreciated how slight scattered and superficial the alleged similarities are, it is readily apparent that IPC have not raised a prima facie case.”

He said that, had he had any doubt on that score, it would be laid to rest by the evidence of Highbury’s witnesses.

“It was clear that, in denying copying, all of them were honest,” he said.

Explaining that, rather than simply copying Ideal Home, Highbury had sought to adopt the so-called ‘Power of 2’ philosophy to challenge its rival, the judge continued: “Under this, Highbury assessed its progress and the quality of its publication not by reference to the numerous other magazines in the market sector but against the market leader. It wanted to aim high.

“To that end it analysed Ideal Home and its performance in the market place. Mr Howe did not suggest that there was anything wrong in doing this. It is legitimate to compete. But, he argues that Highbury had gone further and had copied.

“I have considered IPC’s case with great care. The trouble is that I have found nothing which lends any weight to the suggestion that Highbury crossed the line and copied in any way.

“I have come to the conclusion that IPC gets nowhere near making out its case on copying. In relation to the articles, as in relation to the covers, the similarities have been exaggerated by selective excision.

“There was no copying. Furthermore, even if, contrary to m findings, Highbury had been ‘inspired’ in some of its design choices by what it saw in Ideal Home, it would have been at far too high a level of generality to amount to infringement of copyright.”

And, in illustrating what is required to succeed in a case of this kind, the judge drew inspiration from Michelangelo and Monet.

He said: “Michelangelo said of one of his sculptures: ‘I saw the angel in the marble and I carved until I set him free.’

“In copyright cases, chipping away and ignoring all the bits which are undoubtedly not copied may result in the creating of an illusion of copying in what is left. This is a particular risk during a trial.

“The need to prove copying involves showing a design nexus between the defendant’s and the claimant’s works. However, it is a mistake to believe that any nexus will do.

“The law of copyright has never gone as far as to protect general themes, styles or ideas. Monet, like those before him, acquired no right to prevent others from painting flowers or even water lilies. Georges Seurat would not have obtained, through copyright, the right to prevent others from painting in a pointillist style.

“Even someone who is inspired by Monet to paint water lilies, or by Seurat to paint using coloured dots, would not infringe copyright. Such general concepts are not put out of bounds to others by the law of copyright.”

The question of legal costs and a possible appeal by IPC will be dealt with in the New Year.

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