Legal Update 28.01.05

In the High Court
last month IPC Media, publisher of the interior decorating magazine
Ideal Home, lost its unprecedented claim for copyright infringement
against the publisher of rival magazine, Home. It was the first time
that a publisher had sued an alleged “copycat” publication for breach
of copyright based on various “striking” similarities between the
design style and general content of the two magazines.

IPC alleged
that Highbury had copied numerous aspects of the design, subject
matter, theme and presentational style of Ideal Home in its Home
magazine, so as to create an overall presentation that was so
substantially the same as to be an infringement of its copyright.

IPC
relied specifically on Highbury’s use of the same title font with a
similarly designed and worded strapline over a full-page photograph and
the frequent use of front page design techniques used in Ideal Home to
establish breach of copyright. However, this focus on the individual
design elements of magazine publishing rather than the work as a whole
was such that Mr Justice Laddie found that they “appeared to be
asserting copyright in those design elements rather than in the covers
and articles themselves”. In his judgment, he made it clear that the
law of copyright is concerned with specific original works as a whole.

It does not protect “general themes, styles or ideas”.

IPC
argued that the similarities between the two publications were so
striking and so great in number that they could not reasonably be
explained away on the basis of pure coincidence. It was, however,
criticised by the court for concentrating on areas of similarity
“divorced from the numerous differences and also divorced from the
essentially routine nature of the design elements relied on [thus
creating] a misleading picture”. The court reiterated that a claimant
cannot cherry-pick only the elements of the work that appear to be
copied: “chipping away and ignoring all the bits which are undoubtedly
not copied may result in the creation of an illusion of copying in what
is left”. While accepting that the claim had been made in good faith,
the court held that “IPC has ignored the enormous number and visual
importance of the differences between the parties’ respective products
so as to create similarity by excision”.

Furthermore, it was
found that the similarities could on the whole be adequately explained
by the fact that both parties designed their magazines “in accordance
with common design conventions, utilising common design expedients” and
that “none of the individual ingredients … is other than standard or
common in this trade”. The court added specifically that the similar
straplines were both “utterly trite” and that it is to be expected that
designers “approaching a similar design objective and using standard
design techniques will arrive at a design which, at a suitably high
level of generality, includes similar features [and bears] no
indication of copying”.

In a competitive industry where rival
publications are – perhaps inevitably -often barely distinguishable in
appearance and content, IPC was unable to persuade the court that
Highbury was doing anything other than producing a magazine that, aimed
at a similar target audience, had adopted a wholly unexceptional
approach to design and content . That some of the features of the
design of Home were very close to those of Ideal Home was to be
expected and certainly could not give rise to a claim for breach of
copyright. Refusing a claim that could have had serious repercussions
for the publishing industry, Mr Justice Laddie’s judgment makes it
clear that copyright remains concerned with individual works and cannot
be extended to protect general design themes, styles or content,
particularly where the elements allegedly copied are typical examples
of industry practice.

Charles Brasted is a trainee solicitor in Lovells Intellectual Property Department

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