Andre Durand agreed to paint a portrait of the defendant Mario, a restaurateur, for £15000 worth of free meals
Who: Andre Durand and Mario e Pepe Ltd
When: October 99
Where: UK Chancery Court
Andre Durand agreed to paint a portrait of the defendant Mario, a restaurateur, for £15000 worth of free meals (!!). The only usage clearly discussed at the time the deal was done was on menu covers, although the picture was later used on a range of stationery. Then the defendant commissioned Durand to paint a picture based on a photograph of a presentation of a pizza to Mario e Peppe customer Lady Diana. The use agreed was on special menus, greeting cards and invitations to a launch party for the "Lady Diana Pizza". Following the Princess’s death Durand agreed to alter the pizza painting. Though discussions over use came to no conclusion, the altered picture was used for promotional material.
Durand claimed infringement of copyright in all three paintings. The Court held that where the commissioner of a painting was the painting’s subject the commissioner should have complete control of its use even though the artist was the legal owner of the copyright. In all the circumstances the court ordered Durand to assign that copyright to the defendant and concluded that even if the painting had not been of the commissioner, the latter would have had a perpetual exclusive licence to use it for the purposes of promoting the restaurant. Durand was held not entitled to restrict or withdraw the restaurant’s right to use the original Lady Diana picture for greeting and invitation cards, whilst similar rights were regarded as granted in respect of the altered "Diana Pizza" picture.
Why this matters:
The case underlines that even if no clear contract is signed specifying use of copyright material in advertising, the court may well be imaginative in granting implied rights. However, all the debate and no doubt substantial legal costs (probably dwarfing the amounts involved) could have been avoided by a clear written agreement being concluded in the first place.