The UK Press Gazette recently reported that Ireland on Sunday (‘IoS’) recently accused the Irish Independent (‘II’) of ‘egregious breach of copyright.’ The II published what looked like a slightly tweaked version of an illustration that appeared in the IoS just 24 hours earlier. But can you change 10% of an illustration or photograph and get away with it?
Topic: Copyright
Who: Ireland on Sunday and the Irish Independent
Where: Dublin
When: August 2004
What happened:
As reported in the UK Press Gazette recently, Irish national newspaper Ireland on Sunday ("IoS") recently accused the Irish Independent ("II")of 'egregious breach of copyright'. The claim followed IoS's double-page spread of a colour illustration showing the detailed 'roofs off' layout of the planned enormous new Limerick home of billionaire racehorse owner and near nemesis of Sir Alex Ferguson, J P McManus.
On the immediate following Monday the II ran what appeared to be a very similar graphic.
The II has declined to comment on any of the issues raised so far, but it is right to say that there are some differences between the two illustrations, with slight tweaks having been made, for example, to the wording of the various captions describing various parts of the residence. Other captions which featured in the IoS version simply do not appear in the II article.
IoS's lawyers were reported to be demanding damages and legal costs and also seeking assurances that there would be no further breaches in the future.
Why this matters:
In considering its response to IoS's demands, one issue which the II lawyers will no doubt be focussing on is whether the IoS graphic was 'original' to that newspaper and the illustration's authors, as opposed to an adaptation, for example of architects' drawings.
Also, if Irish copyright law is similar to that of the UK, which marketinglaw believes it very likely will be, IoS will have to establish that it either owns or is at least sole and exclusive licensee of the copyright in the graphic It appears, for example, that at least one freelance illustrator was involved in producing the execution, so in order to pursue the II, the IoS will have had to ensure that all rights of the illustrator were vested in the IoS.
Enough changes made?
Assuming all these issues were covered off, the remaining question would likely be the various differences between the two graphics. Under English law, however, marketinglaw's view is that there simply have not been sufficient changes made for the II to be able to avoid its version being adjudicated as a 'copy of a substantial part' of the original, and therefore an infringing copy.
No "change 10% and you're OK" rule
In this connection it is worth remembering that contrary to the understanding of many working in advertising agency production here in the UK, there is no rule that says 'change 10% and you will avoid infringing copyright'. The test of copyright infringement is not whether a specific percentage of the original work has been altered. It is whether, in terms of quality, not quantity, a substantial or significant part of the original work has been taken.
