Introduction
This essay provides legal advice to John Griffin, a Welsh sculptor, regarding potential copyright infringement claims under the Copyright, Designs, and Patents Act 1988 (CDPA 1988) following the unauthorised use of his site-specific leaf sculpture, “Rowan Leaves and Hole,” by graphic designer Cam Green in designing a film poster for “Into the Void.” The analysis draws on key provisions of the CDPA 1988, focusing on whether Griffin’s work qualifies for copyright protection, the nature of the alleged infringement, and the likelihood of a successful claim against Green and the film producer. By examining concepts such as originality, artistic works, and restricted acts, this essay argues that Griffin has a reasonable basis for action, though challenges related to the temporary nature of his sculpture and evidential issues may arise. The discussion is structured around copyright eligibility, infringement analysis, potential defences, and overall prospects for success, informed by established legal principles and case law. Ultimately, while Griffin could pursue a claim, success would depend on proving substantial copying and overcoming any fair dealing arguments.
Copyright Protection for Artistic Works under the CDPA 1988
The foundation of Griffin’s potential claim lies in whether “Rowan Leaves and Hole” qualifies as a protected work under the CDPA 1988. Section 1(1) of the Act grants copyright to original artistic works, among other categories, provided they meet certain criteria (Copyright, Designs and Patents Act 1988). Artistic works are defined in section 4(1) to include sculptures, irrespective of artistic quality, which is a broad interpretation that arguably encompasses site-specific and land art like Griffin’s leaf arrangements. For instance, the arrangement of natural materials such as leaves into geometrical shapes or abstractions aligns with judicial interpretations of sculptures as three-dimensional works created by an artist’s hand (Laddie et al., 2018). In the case of Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444, the court considered whether an assembled scene (including props like a Rolls Royce in a swimming pool) constituted a sculpture or collage, ultimately ruling it as a dramatic work but highlighting the potential for temporary installations to attract protection.
However, a key limitation is the requirement for originality under section 1(1)(a), meaning the work must originate from the author and involve sufficient skill, labour, and judgment, rather than being a mere copy (Copinger and Skone James, 2021). Griffin’s process—selecting specific rowan leaves in autumn colours, sketching preliminary designs, and arranging them in a circular gradient to create depth and contrast—demonstrates creative input, suggesting originality. This is supported by the EU-influenced standard from Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECR I-6569, which requires the work to reflect the author’s intellectual creation, a threshold Griffin’s deliberate design likely meets.
Furthermore, the temporary nature of the sculpture poses no inherent barrier to protection, as copyright subsists from the moment of creation, even without fixation in a permanent form for artistic works (unlike literary or musical works under section 3). Yet, Griffin’s inability to photograph the work due to a dead battery complicates evidence gathering, as photographs often serve as proof in ephemeral art cases (Bently et al., 2018). Despite this, witness statements or sketches could substantiate the work’s existence. In advising Griffin, it is therefore arguable that “Rowan Leaves and Hole” qualifies as an original artistic work, providing a basis for copyright subsistence.
Ownership and Duration of Copyright
Assuming protection applies, Griffin, as the creator, is the presumptive owner of the copyright under section 11(1) of the CDPA 1988, unless the work was made in the course of employment, which does not appear relevant here. This ownership grants him exclusive rights for the duration of his life plus 70 years, as per section 12(2), ensuring the work remains protected long after its physical dissipation.
Ownership is crucial because it enables Griffin to control restricted acts, but evidential challenges arise from the sculpture’s ephemerality. Without his own photograph, Griffin must rely on other means to prove the work’s details, such as contemporaneous sketches or affidavits from observers. Legal commentary emphasises that for transient works like land art, documentation is key to enforcing rights (Torremans, 2019). If Griffin can establish ownership through such evidence, this strengthens his position against unauthorised reproductions, including Green’s poster.
Acts of Infringement and Substantial Copying
The core of Griffin’s claim involves alleging infringement through restricted acts under sections 16-21 of the CDPA 1988. Green photographed the sculpture and used it as source material to create a nearly identical poster in Adobe Illustrator, replicating the colour gradient, leaf arrangement, and proportions. This constitutes copying under section 16(3), which includes reproducing the work in any material form, such as a two-dimensional graphic design.
Importantly, infringement requires copying a substantial part of the work, assessed qualitatively rather than quantitatively (section 16(3)(a)). In Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, the House of Lords held that substantiality depends on the importance of the copied elements to the original, such as the artistic expression. Here, the poster’s “almost identical” replication of the gradient and depth-creating void suggests substantial copying, drawing the viewer’s eye inward in a manner central to Griffin’s concept. Green’s act of photographing, while not infringing per se (as section 62 allows photographs of publicly displayed artistic works), becomes problematic when used to produce a derivative work without permission.
Against the film producer, secondary infringement could apply under sections 22-26 if they knowingly dealt with infringing copies, such as distributing the poster. Griffin would need to demonstrate causal connection—namely, that Green’s photograph directly informed the poster design (Copinger and Skone James, 2021). Overall, these acts provide grounds for a claim, though Griffin must prove access and similarity, which the scenario’s facts support.
Potential Defences and Exceptions
Even if infringement is established, Green and the producer might invoke defences. Fair dealing for criticism, review, or reporting current events (section 30) is unlikely, as the poster promotes a film rather than critiques Griffin’s work. Similarly, incidental inclusion (section 31) does not fit a deliberate, near-identical reproduction.
A stronger defence could be that the sculpture, being in a public park, falls under section 62, permitting graphic representations of artistic works permanently situated in public places. However, “Rowan Leaves and Hole” is temporary, not permanent, potentially excluding this exception (Laddie et al., 2018). Case law like J & S Davis (Holdings) Ltd v Wright Health Group Ltd [1988] RPC 403 underscores that transience affects such defences. Additionally, if Green argues independent creation, the direct photographing undermines this. Thus, defences appear limited, bolstering Griffin’s prospects.
Potential Success, Remedies, and Practical Considerations
Griffin’s likelihood of success hinges on courtroom evidence. He could seek remedies under sections 96-115, including injunctions to halt poster distribution, damages for losses (e.g., lost licensing fees), or an account of profits. Moral rights under sections 77-89 might also apply, protecting attribution and integrity, given the unattributed use.
However, practical hurdles include proving the work’s exact appearance without photographs, potentially weakening the case. Legal costs and the need for expert testimony on artistic similarity could deter pursuit, though small claims tracks in the Intellectual Property Enterprise Court offer accessible options (Torremans, 2019). Critically, while the CDPA 1988 provides robust protection, judicial discretion in assessing substantiality introduces uncertainty. Griffin should consult a solicitor to gather evidence, such as Green’s photograph if discoverable, to enhance his position.
Conclusion
In summary, Griffin has a viable claim under the CDPA 1988, as “Rowan Leaves and Hole” likely qualifies as an original artistic work, with Green’s poster constituting substantial copying and infringement. Ownership resides with Griffin, and defences seem weak due to the work’s temporality. Nevertheless, evidential challenges from the lack of documentation may complicate proceedings, and success is not guaranteed without strong proof of similarity. This case highlights the vulnerabilities of ephemeral art in copyright law, underscoring the need for artists to document works promptly. Griffin is advised to seek professional legal counsel to evaluate specifics and pursue action, potentially securing remedies that affirm his creative rights. By addressing these elements, artists like Griffin can better navigate the intersection of transient art and intellectual property protection.
References
- Bently, L., Sherman, B., Gangjee, D., and Johnson, P. (2018) Intellectual Property Law. 5th edn. Oxford University Press.
- Copinger and Skone James on Copyright (2021) 18th edn. Sweet & Maxwell.
- Copyright, Designs and Patents Act 1988. Available at: https://www.legislation.gov.uk/ukpga/1988/48/contents (Accessed: 15 October 2023).
- Laddie, H., Prescott, P., Vitoria, M., Speck, A., and Prince, L. (2018) The Modern Law of Copyright and Designs. 5th edn. LexisNexis.
- Torremans, P. (2019) Holyoak and Torremans Intellectual Property Law. 9th edn. Oxford University Press.
