Case Study: Creation Records Ltd v. News Group Newspapers Ltd.

By Anish Sinha 9 Minutes Read

“The Court ruled that temporary or preparatory arrangements, like a set design, are not protected as artistic works under copyright law unless they exhibit originality and are intended as independent creations, separate from their role in producing the final work.”

Citation: [1997] E.M.L.R. 444

Date of Judgment: 7^th May, 1997

Court: High Court of Justice, Chancery Division

Bench: Lloyd (J)

Facts

• The case concerned a photograph taken by News Group Newspapers Ltd during a photo shoot for the band Oasis, arranged by Creation Records Ltd, the band’s record label. The photo session was intended to create the album cover for Oasis’s album “Be Here Now.”
• The photograph in question included the band members along with several artistic elements and props, such as a Rolls Royce submerged in a swimming pool, a globe, and other carefully arranged objects.
• Creation Records argued that the photograph infringed on their copyright in the album cover design and the various artistic works used as props in the photo shoot.
• The newspaper argued that the photograph was an independent work, created through their own skill and labour, and that any elements of copyright infringement were incidental to the photograph.

Decision of the lower court

The lower court determined that the photograph taken by News Group Newspapers Ltd during a promotional shoot for Oasis was an independent creation. The court recognized that the photographer employed skill and creativity in capturing the image, making it a new and original work. The photograph was not merely a reproduction of the scene or the artistic elements involved but was instead a product of the photographer’s judgment and artistic choices, establishing its originality.

The court also addressed the inclusion of copyrighted artistic elements, such as the submerged Rolls Royce and other props, within the photograph. It held that the use of these elements was incidental to the overall composition of the photograph. Since the photograph was classified as a new work of authorship, the incidental inclusion of these elements did not constitute copyright infringement. The court reasoned that the photograph did not diminish or exploit the value of the original copyrighted works, as it was not a mere reproduction but rather a transformative creation.

Ultimately, the lower court ruled in the favour of News Group Newspapers Ltd, concluding that the photograph was an original work and did not infringe on the copyrights of the individual artistic elements included in the scene. This ruling emphasized the importance of originality and the distinction between reproducing existing works and creating new, independent expressions in copyright law.

Decision of the High Court

The High Court upheld the decision of the lower court, agreeing that the photograph taken by News Group Newspapers did not infringe on the copyright of the artistic works included in the scene. The court emphasized that the photograph was a new and distinct work, created through the photographer’s skill and creativity. The court further ruled that the use of the props in the photograph was incidental and did not constitute a violation of copyright.

Key legal issues discussed

1. Did the inclusion of copyrighted artistic elements in the photograph amount to copyright infringement?

No

The court found that the inclusion of the artistic elements in the photograph was incidental and did not amount to copyright infringement. The judgment emphasized that the photograph was a transformative use of the elements, resulting in a new work that did not infringe on the original copyrights.

Referring to Bauman v. Fussell[1] case the court in para 15 noted that “If the subject matter is not itself copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other. Of course, copyright subsists in the official photograph and if it were the only source of the scene it would be an infringement to copy that, either by a direct copying process or by the scene being recreated and a fresh photograph taken of that recreation. But it is a basic proposition of copyright law that two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are.”

2. Does the photograph constitute a breach of confidentiality?

No                       

In para number 30, Justice Lloyd acknowledged that the nature of the operation and the security measures in place could imply a level of confidentiality regarding photography during the shoot. He noted that “I accept it as well arguable that the nature of the operation together with the imposition of security measures as described by the plaintiffs’ witnesses made it an occasion of confidentiality at any rate as regards photography. In that context I also accept it as sufficiently arguable that in order to get his picture Mr. Seeburg must have conducted himself a good deal less openly than he suggests and indeed surreptitiously, as the plaintiffs suggest. If so, it is an easy inference that he did so because he knew that photography was not permitted and that he was being allowed to remain in the restricted area only on the basis that photographs would not be taken of the actual shoot.”

This analysis shows the court’s recognition of the confidentiality surrounding the album cover shoot and the implications of Mr. Seeburg’s conduct in relation to that confidentiality that the court acknowledged the nature of the album cover shoot, combined with the security measures implemented by the plaintiffs, created a context of confidentiality regarding photography. The court found it arguable that Mr. Seeburg, the photographer, must have acted surreptitiously to capture the image, indicating that he was aware that photography was not permitted during the shoot. This conduct suggested that he was allowed to remain in the restricted area only under the condition that he would not take photographs, thereby reinforcing the expectation of confidentiality surrounding the event.

[1] [1978] R.P.C. 485.

Anish Sinha