Claim No. SC13P02538
Neutral Citation Number: [2013] EWHC 3804 (IPEC)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice
Strand,
London Wc2A 2LL
3 December 2013

Before:
district judge clarke
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SUZY TAYLOR
Claimant

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ALISON MAGUIRE
Defendant

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Miss Ashton Chantrielle (instructed by Forsters) for the Claimant
Hearing date: 12 September 2013
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JUDGMENT
District Judge Clarke:

1.	This is a reserved judgment following a small claim track trial on 12 September 2013. The Claimant was represented by Miss Chantrielle of counsel and the Defendant did not attend. There was nothing on the file to explain her absence and accordingly I heard the matter.

2.	The Claimant is an artist working in the medium of papercutting. She is sufficiently well-known in the field to have been commissioned to design a poster for the Lord Mayor’s Show in 2012. She has also been commissioned to produce marketing works by the large US-based retail chain Pottery Barn. She exhibits and sells her works from a Facebook page in the name of Folk Paper Arts. The Defendant produces various papercutting works which she exhibits and has sold from a Facebook page in the name of PAPERtastic. 

3.	The Claimant claims that the Defendant has infringed her copyright in various original artistic works, including a papercut Letter S, Letter K, Rabbit, and “A friend…” (the “Claimant’s Works”) by creating, replicating, possessing and dealing in papercut works which replicate her works or the distinct style of her works (the “Defendant’s Works”). She seeks an injunction preventing further infringement, destruction of infringing works, damages or damages on account of profit, interest and costs. 

4.	The Defendant denies copyright infringement. She says that Defendant’s Works complained of are original artistic works independently created by her and her minor daughter, that the Claimant’s Works are not original, that any similarity between them is not substantial and she relies on the educational defence contained in the Copyright Designs and Patents Act 1988 (“CDPA”). 

5.	I have read the claim, particulars of claim, defence and reply to defence which stand as evidence in accordance with the rules of the Intellectual Property Enterprise Court. I have read the witness statements of the Claimant. I have also read the attachments to those documents. I have had the benefit of submissions from Miss Chantrielle and I have heard direct evidence from the Claimant.

The law

6.	I will set out the law in greater detail than usual to assist the unrepresented Defendant, who did not attend the hearing, in understanding it. Section 1 of the CDPA provides for copyright to subsist in original artistic works. An “original artistic work” is a work in which the author/artist has made an original contribution in creating it – for example by applying intellectual effort in its creation. 

7.	Artistic works are listed in s4(1) CDPA and include “a graphic work… irrespective of its artistic quality”. Graphic work is defined in 4(2) as including “(a) any painting, drawing, diagram map, chart or plan and (b) any engraving, etching, lithograph, woodcut or similar work…”.

8.	For an artistic work to be original it must have been produced as the result of independent skill and labour by the artist. The greater the level of originality in the work the higher the effective level of protection is, because it is the originality which is the subject of copyright protection. If the work includes elements which are not original to the artist then copying only those elements will not breach that artist’s copyright in the work. It is only where there is copying of the originality of the artist that there can be infringement. 

9.	Where there is more than one step in the production of a work of art which results in the creation of more than one original artistic work at different stages, more than one copyright may exist. In the case of a woodcut, for example, a drawing or design may first be created on paper (falling under 4(2)(a)), which is then cut or carved into a block of wood to make a woodcut (falling within 4(2) (b)). There will be two copyrights in two separate works, the design and the block.

10.	Section 16 of the CDPA provides that the owner of the copyright in a work has exclusive rights to do various things in relation to the work as a whole or in relation to “any substantial part” of it. Again, when considering whether acts complained of relate to “any substantial part” of a work, it is that part of the work which is original which is relevant to substantiality. What is substantial is a question of fact and degree in the context of the originality of the author. 

11.	If something is an exact copy of the whole or a substantial part of an artistic work protected by copyright, it will be an infringement if there is no defence provided by one of the exceptions contained in the CDPA. If something is an inexact copy, for example if it merely resembles an artistic work protected by copyright, it may or may not be infringing. The issue is whether it is a mere idea which has been copied or whether it is the work itself – ie the expression of the author’s idea – which has been copied. There is no copyright in an idea per se because a mere idea is not a “work” in which copyright can subsist. 

12.	The issue was considered by Lord Hoffman in Designers Guild Ltd v Russell Williams (Textile) Ltd [2001] FSR11 HL who said: 

“Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work, but the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a “substantial part” of the work…

Ladbroke (Football) Ltd v William Hill (Football) Ltd establishes that substantiality depends on quality rather than quantity… and there are numerous authorities which show that the “part” which is regarded as substantial can be a feature or combinations of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to be copied in this case…

Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author’s skill and labour, tends to lie in the detail with which the basic idea is presented.”

13.	Lord Hoffman went on to set out the correct approach for a court concerned with determining an action for infringement of artistic copyright, which is the approach I shall follow:

“The first step in an action for infringement of artistic copyright is to identify those features of the defendant’s design which the plaintiff alleges to have been copied from the copyright work. The court undertakes a visual comparison of the two designs, noting the similarities and the differences. The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are too commonplace, unoriginal or consist of general ideas. If the plaintiff demonstrates sufficient similarity, not in the works as a whole but in the features which he alleges have been copied, and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying…

Once the judge has found that the defendant’s design incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the defendants work… The pirated part is considered on its own… and its importance to the copyright work assessed. There is no need to look at the infringing work for this purpose.”

14.	There are defences to copyright infringement contained in the CDPA. The one raised by the Defendant in respect of some of the Defendant’s works is an educational defence contained in Section 32(1) CDPA.  This provides that copyright is not infringed by its being copied in the course of instruction or preparation for instruction, provided that the copying is done by a person giving or receiving instruction and is accompanied by a sufficient acknowledgement. Section 32(6) CDPA provides that where a copy which would otherwise be an infringing copy is made in accordance with section 32 but is subsequently “dealt with”, it will be treated as an infringing copy for the purpose of that dealing and (if that dealing infringes copyright) for all subsequent purposes. “Dealt with” for these purposes means sold or offered or exposed for sale or communicated to the public. 

Issues

15.	The issues are as follows:

a.	Are each of the Claimant’s Works original artistic works in which copyright subsists and is owned by the Claimant?

b.	Has the Defendant created the Defendant’s Works? 

c.	Has the Claimant shown sufficient similarity between each of the Defendant’s Works and the features of the Claimant’s Works alleged to have been copied?

d.	Did the Defendant have prior access to each of the Claimant’s Works alleged to be copied?

e.	Has the Defendant satisfied the court that the similarities did not result from copying?

f.	Is any copying of the whole or a substantial part of the Claimant’s Works?

g.	Has the Defendant satisfied the court that any defence or exception available under the CDPA applies?

h.	Has the Claimant’s copyright, if any, been infringed?

Are each of the Claimant’s Works original artistic works in which copyright subsists and is owned by the Claimant?

16.	In the first Witness Statement of the Claimant she sets out a history of her work in the medium of papercutting and the evolution of what she calls her signature style. She attaches to that witness statement some of her early papercut works going back to 2007 to illustrate that evolution. She explains how the simplicity of those early works developed into the more intricate and complex work that she has produced more recently and continues to produce. She explains her influences, including folk works and, in particular, the folk gothic tradition. She also explains how she admires, respects and is inspired by the well-known papercutting artist Rob Ryan and suggests that all artists working in the medium of papercutting similarly admire and are inspired by him. She describes him as a “papercutting God”. 

17.	The Claimant goes on to explain how she tried to develop a papercutting style which would be recognisably hers and says that she deliberately developed her style so it could not be confused to that of Rob Ryan. In paragraph 3.18 of her first witness statement she sets out what she describes as “the constituent parts of her recognisable style”. She explains that her works are densely patterned and she spreads her motifs and other elements evenly throughout her designs, ensuring that empty space is just as important as the design. She explains the various flower and leaf motifs which she uses to populate her works and how she came to design them. She explains the fine detail involved in hollowing out many of the flower, leaf and stem shapes and other shapes that she uses, and the choices involved in deciding to hollow out all, part or none of a shape. She describes how she uses stylised elements like small “flicks”, often representing thorns or small leaf buds, in otherwise empty space and says this has become a signature of her works. 

18.	The Claimant submits that the Claimant’s Works are original artistic works within CDPA 4(1),that she is the creator of each of them and she holds the copyright in them. Ms Chantrielle submits for the Claimant that the papercut works are graphic works comparable to a woodcut or engraving. It is not clear to me whether or not the Defendant disputes this. The Defence states “the Claimant draws and cuts flowers from paper as many other papercutters do. This is not an original idea. Many papercutters have the idea of cutting designs with flowers.”. It goes on to say “This is a statement, stating that the Claimant owns the copyright in five different works, I do not know if this is true.” I shall assume that she does dispute that the Claimant’s Works are protected by copyright and accordingly this is the first issue I need to resolve. 

19.	 I am not convinced that the Claimant’s Works are properly characterised as graphic works. Miss Chantrielle for the Claimant submits that cutting paper to leave a pattern can be compared to removing or incising parts of a plate or block to make an engraving. I understand the comparison that she seeks to make, but I bear in mind the case of Radley Gowns Ltd v Spyrou [1975] FSR 455, which held that cutting a paper pattern from a design is a drawing. I also bear in mind the New Zealand case of Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd (No 2) [1989] 1 NZLR 239 (NZ) which held that to be the case even if the pattern was cut directly from paper with scissors without the intermediate use of a pencil. Those cases suggest to me that a papercut work of the type in this case may fall within s4(1) CDPA as a drawing rather than as a graphic work.  I omitted to ask Ms Chantrielle for submissions on that point at the hearing. However it is not necessary for me to decide the point since I am satisfied that if they are not drawings, they are graphic works and in either case they are protectable as works of artistic copyright, if they are original.

20.	I am satisfied that the Claimant’s Works are original. In creating each of the Claimant’s Works, the Claimant has had to make detailed choices. She chose the overall shape of the design. In one case she chose a text and how it would be presented. She chose the structure of stems and branches to give each its plant-like appearance. She chose to infill that structure with smaller branches and leaves. She placed them. She chose to further infill the design with flowers, birds and insects. She chose the shape of the leaves, the shape and design of the flowers, birds and insects and the manner in which they were cut. She placed them. She chose which elements to hollow out and how. She chose to further infill empty space with “flicks” in the form of thorns, leaves or buds. All of these choices bring the Claimant’s independent labour and skill to the finished work. There is no evidence that these works were not independently arrived at, and I find that they were. 

21.	There is also no evidence that the copyright has been assigned away from the Claimant as the original creator. Accordingly I am satisfied that the Claimant’s Works are original artistic works protected by copyright under section 4(1) CDPA and that the creator of each of them is the Claimant who holds the copyright.  

Has the Defendant created the Defendant’s Works?

22.	The Defendant has produced a Defence which is written, almost entirely, in the third person plural. She refers to “our papercutting work”, “the designs we created”,  “they are our own work” etc. I understand the “We” and “our” in the Defence to refer to the Defendant and her minor teenage daughter, Katie. 

23.	In relation to certain of the Defendant’s Works the Defence refers to her daughter carrying out the cutting-out function, for example saying “it was my daughter’s first cut” “my daughter got very upset…as she had worked extremely hard for many months producing many of these papercuts…. I did not want my daughter being put off exploring her new passion of papercutting when she was still developing her skills.”

24.	 Despite this the Defence still refers to all works as “ours”. It also states “I myself cannot work due to my illness and disability so this hobby is very therapeutic and essential in my wellbeing.” 

25.	 It may well be that some of the Defendant’s Works were cut out either wholly or mainly by the daughter, but nowhere does the Defendant dispute her own involvement in the design and creation of the Defendant’s Works and the tenor of the Defence is that she admits at least jointly creating and publishing on Facebook each of the Defendant’s Works. I so find. 

Other Issues

26.	I will deal with the other issues on a work-by-work basis. In each case it is for me to determine the extent to which, if at all, the Claimant’s Work and the Defendant’s Work have matter in common, being matter which was original to the Claimant and copied by the Defendant. If the common matter is detailed enough and original enough to be capable of being an original artistic work in its own right, then by definition the Defendant’s Work is a copy of an original work.

Letter S

Sufficient similarity?

27.	The Claimant’s Letter S is created using a font called Deneane, which the Claimant submits is only available from specialist font websites. Her evidence is that she drew a central flowing stem from the bottom tail of the S to the top tail of the S and then placed branches out to form a skeleton for the design. She then filled in the design with certain elements – a distinctive flower with 5 heart-shaped petals, a flower with three heart-shaped petals, tear-shaped leaves which were hollowed out to leave part of the stem remaining, berries and thorns. The Claimant submits that the originality of her design includes the fact that the elements are arranged evenly and unsymmetrically over the whole shape of the letter with a balanced amount of pattern and empty space, and that there is no solid edge to the letter outline, which is created by the ends of the leaves and flowers of the design.  The Claimant points to similarities between the Claimant’s Letter S and The Defendant’s Letter S in her witness statement. 

28.	The Defendant says that the Defendant’s Letter S is not a copy but merely a letter shape formed of leaves and flowers. The implication is that it is an original work produced by the Defendant either alone or with her daughter. In relation to the work “A Friend is One…” she says “Most people will draw a daisy in the same way. There will always be similarities when drawing flowers leaves and wildlife as you are drawing from a real physical object that is available everywhere.”. She presumably would make the same point in relation to the Defendant’s Letter S. 

29.	The Defence states “some of the designs we created have been inspired from the idea of drawing flowers into various shapes. This is an idea I had when I was a teenager myself”.  It goes on to say “They are our own work designed from scratch in our own style. A style which is inspired from a similar idea to the Claimant and many other papercutting artists. The idea is similar to the Claimant, the finished result is different. We have drawn flowers based on images found in the garden and local surrounding areas not from the Claimant’s Works”. The Defence attaches several exhibits showing works by Rob Ryan to illustrate that point.

30.	I have identified the following similarities in the Defendant’s Letter S to the Claimant’s Letter S:

•	The spine or main branch arcing through the letter in an almost identical way, including starting and ending at the same points of the “S”.

•	The use of tear shaped leaves hollowed out with part of the stem remaining.

•	The use of a flower with 5 heart shaped petals similar to that of the Claimant’s Works, albeit with a different centre.

•	The use of serrated leaves, albeit hollowed out more extensively than in the Claimant’s Letter S.

•	The use of a fan-shaped flower that looks like clover. The Defendant’s Work shows flowers that have three petals to the Claimant’s six but the overall look and shape is very similar.

31.	 The fact that the Defendant’s Letter S uses the same font as the Claimant’s Letter S is not a similarity which has any relevance to my analysis, as the font is not original to the Claimant and so is not part of the Claimant’s original artistic work protected by copyright. 

32.	Similarly, I am not with the Claimant in her submissions that her originality includes, firstly, the lack of a solid line forming the letter shape, which is formed by the placement of flowers and leaves, and secondly, the even and unsymmetrical arrangement of elements over the whole shape of the letter with a balanced amount of pattern and empty space. I can see both of these devices in the works of Rob Ryan appended as Appendix 1 and 1a to the Defence. The Claimant admits the influence of Rob Ryan and makes no claim that Rob Ryan has copied her. In relation to the second point, I understand that the Claimant distinguishes her work by use of the words “over the whole shape of the letter” - namely that her work shows no differently-scaled central openwork element as can be seen in those two Rob Ryan’s works appended to the Defence. The fact that such an element is missing in the Claimant’s work cannot, in my judgment, affect the originality or otherwise of what remains. In my judgment neither of those devices are original to the Claimant and so cannot be part of the Claimant’s original artistic work protected by copyright. 

33.	However I can see originality in the use of the specific elements listed above in an even and unsymmetrical arrangement over the whole shape of the letter with a balanced amount of pattern and empty space. This is what the Claimant describes as her “topiary style” and that is, in my judgment, original.

Prior Access?

34.	The Defendant says that on the 25 May 2013 a customer at a craft fair asked for a letter S and a letter D in a similar style to their papercut letter O. She says in the Defence “We started drawing the design on 26 May and cutting commenced around 28 May. On 31 May we uploaded a photo of our partly cut initial S [onto Facebook]. We completed it on 1 June 2013. The Claimant’s Letter S completed on 9 June 2013. Our work was completed a week before the Claimant’s Work!”

35.	The Claimant in her Reply to Defence states that she began creating the Claimant’s Letter S in around April 2013 as a prize in a competition. There is annexed to that Reply to Defence evidence that the Claimant posted an image of the partly-cut Claimant’s Letter S on 30 May 2013 on her publicly available Facebook page. She finished the work and posted images of the final version on Facebook on 9 June 2013. Accordingly she says the Defendant had access to the design from 30 May 2013. 

36.	The Defendant makes it clear in the Defence that she did see the Claimant’s Letter S on 30 May. It states “On 30 May we realised that the claimant had used the same font as ourselves for the initial S but it was too late for us to change our design as we had already commenced cutting. We would have changed the font to keep the peace if we had known sooner the Claimant was going to use the same font as us… it was merely a coincidence that the Claimant started doing a papercut initial S a week after we did and that he Claimant used the same font that we had already started using.”

37.	I am satisfied and I find that the Defendant did have prior access to the partly-cut Claimant’s Letter S before she posted her partly-cut Defendant’s Letter S the following day.

D shown that similarities do not arise from copying?

38.	The Defendant says in the Defence that the similarities in the Defendant’s Works do not arise from copying the Claimant’s Works. Attached to the Defence are images of other works created by the Defendant involving letter shapes formed from things other than flowers and leaves. In particular she has produced a letter formed from musical notes as attachment 5 to the Defence and a letter formed from transport motifs as attachment 6 to the Defence. The Defence also asserts that the Defendant has drawn the flowers and leaves contained in various of the Defendant’s Works (presumably including the Defendant’s Letter S) from her own garden, not from the Claimant’s Works. 

39.	The other works that Defendant has produced in evidence are so markedly different in style to the works in dispute that, in my opinion, they make it even less likely that Defendant has produced the Defendant’s Letter S otherwise than by copying. She has not provided any credible explanation of how she came to create the overall design and the individual design details of the Defendant’s Letter S, if she did not come by them by copying the Claimant’s Letter S. This contrasts markedly with the Claimant’s descriptions of the design process and method of work that she went through to produce the Claimant’s Letter S. I accept that most people would draw a daisy in the same way but many of the elements that I have found as similar are much less obvious, including the flower with heart-shaped leaves and the clover-like leaf. The Defendant has not satisfied me that the similarities between the Defendants Letter S and the Claimant’s Letter S do not arise from copying, and I find, taking them all together, that they are more likely to arise from copying than coincidence.

Substantial part?

40.	The Defendant’s Letter S is not an identical copy of the Claimant’s Letter S. Accordingly, the issue for me to decide is whether there is sufficient level of detail of the Claimant’s Work reproduced in the Defendant’s Work to be considered a substantial part of the Claimant’s Work. If so, the Defendant’s Work is an infringement.  This is the case even if the matter in common isn’t a substantial part of the Defendant’s Work.

41.	I find that that similarities I have identified in the Defendant’s Work are sufficiently detailed to be considered a substantial part of the Claimant’s Work. 

Defence?

42.	The Defendant admits that the Defendant’s Letter S was produced on commission for, and sold to, a woman she met at an art fair. It raised £25 inclusive of a glass frame. No specific defence provided for by the CDPA is raised by the Defendant in respect of this work. 

Infringing Acts?

43.	Accordingly I find that the copying of the Claimant’s Letter S to create the Defendant’s Letter S, the sale the Defendant’s Letter S to a third party and publication of the image of the Defendant’s Letter S on the internet are all acts which infringe the Claimant’s copyright in the Claimant’s Letter S. 

Letter K

Sufficient similarity?

44.	The Claimant says that the Claimant’s Letter K is in font Deneane, as is the Defendant’s Letter K, although the Defendant has changed the proportions of the letter in order to better fit in a square format. 

45.	The Claimant’s evidence is that there is again a central flowing stem from the top to the bottom of the vertical element of the K, and then flowing through the top and bottom branches of the K to meet that vertical. Further branches were placed to form the skeleton of the design. As in the Claimant’s Letter S, she submits that the originality of her design includes the fact that the elements are arranged evenly and unsymmetrically over the whole shape of the letter with a balanced amount of pattern and empty space, and that there is no solid edge to the letter outline, which is created by the ends of the leaves and flowers of the design. The Claimant points to similarities between the Claimant’s Letter K and The Defendant’s Letter K in her witness statement.

46.	The Defendant says that the Defendant’s Letter K is not a copy of the Claimant’s Letter K. The Defence states “You can see without any doubt that we have not copied from the Claimant. Our interpretation of the idea has produced a papercut initial K that is square in shape designed to fit into a square frame. The Claimant’s is more rectangular… Ours has many birds and is mainly designed with different shaped flowers and leaves than that of the Claimant’s Letter K… We have also not copied the Claimants “style” of papercutting but merely developed our own style that has been inspired from a similar idea. This is one I had as a teenager where I would ink-fill flowers, ivy and leaves into my initials. This is the inspiration behind the design. Papercutting flowered initials can also be found easily on Facebook.”. 

47.	The Defence attaches a document of four images of papercut flowering initials which were found on the internet to support to this submission. One of them is an image of one of the Claimant’s Works in issue in these proceedings so it can provide no such support. The others bear no stylistic resemblance or other similarity to either the Claimant’s Works or the Defendant’s Works. 

48.	I have identified the following similarities in the Defendant’s Letter K to the Claimant’s Letter K:

•	The spine or main branch going down the vertical leg of the K is very similar in shape until it reaches the bottom. 

•	The spine attaching the top leg of the K to the vertical element is almost identical in shape. 

•	The spine passing through the bottom leg of the K is simpler than the Claimant’s Letter K, but it splits in an almost identical fashion as it terminates. 

•	The use of a hollowed out rosehip/berry motif in the Claimant’s Letter K is replicated in the Defendant’s Letter K either as very similar hollowed out rosehips or as simpler hollowed out round berries. 

•	The use of flowers shaped like daisies, albeit with a round centre rather than the star-shaped centre used by the Claimaint.

•	The unusual motif seen in the same position at the top right of the vertical leg of the K in both the Claimant’s Letter K and the Defendant’s Letter K and repeated throughout the works.

•	 The use of solid flowers with 5 petals albeit the Claimant’s petals have squared edges and the Defendant’s are round.

•	The use of the specific elements listed above in an even and unsymmetrical arrangement over the whole shape of the letter with a balanced amount of pattern and empty space in the Claimant’s “topiary style”.

49.	The same points arise in respect of the font, lack of a definite outline and even and asymmetrical arrangement of non-specific elements as discussed in paragraphs 32 above and I make the same findings. In my judgment these are not original to the Claimant and accordingly are not a part of the Claimant’s original artistic work protected by copyright. 

Prior Access?

50.	The Claimant in the Particulars of Claim states that the Claimant’s Letter K was created on 24 July 2012. In her witness statement she states that she uploaded an image of the reverse of the half cut-out Claimant’s Letter K onto her Facebook page on 27 May 2012. A screenshot is appended which shows both the work to the extent it had been cut out at the time the image was taken, and also the pencil design. 

51.	In the Defence the Defendant states “we deny that we copied the papercut initial K that the Claimant created on 24 July 2012…it was the first work my daughter cut out.” Attached to the Reply to Defence at Annex 4 is a screenshot of a Facebook message from the Defendant to the Claimant which includes the words “I had a lady show me a google image of the rabbit that I see is yours and she asked me if I could do something similar to it… My daughter then went on to do a letter K which is her initial and from there we have been asked to do several similar cuts, some similar to yours, some not.”  

52.	The Defence does not give a date of creation of the Defendant’s Letter K but I am satisfied that the Facebook message provides the more plausible chronology which means it must have been created after the Claimant’s Rabbit was uploaded to the internet on 28 July 2012. Accordingly I am satisfied that the Defendant would have had prior access to the image of the Claimant’s Letter K before the creation of the Defendant’s Letter K.

D shown that similarities do not arise from copying?

53.	Once again, the Defence simply states that the Defendant’s Letter K was not copied from the Claimant’s Letter K. She provides no further evidence apart from the arguments set out above. For the same reasons that I give in relation to the Defendant’s Letter S, I find that the Defendant has not satisfied me that the similarities between the Defendants Letter K and the Claimant’s Letter K do not arise from copying. Accordingly I find, taking them all together, that they are more likely to arise from copying than coincidence.

Substantial part?

54.	As the Defendant’s Letter K is not an identical copy of the Claimant’s Letter K so once again I must determine whether there is sufficient level of detail of the Claimant’s Work reproduced in the Defendant’s Work to be considered a substantial part of the Claimant’s Work. I find that there is. 

Defences?

55.	In the defence the Defendant states “Our initial K is still in our possession as it was my daughters first cut which took many days of hard labour and skill. It was made for herself as it is her own initial (Katie). It is not and will not be for sale.”. Accordingly it appears that no specific defence provided for by the CDPA is raised by the Defendant in relation to this work.

Infringing Acts?

56.	 Accordingly I find that the copying of the Claimant’s Letter K to create the Defendant’s Letter K and the publication of the image of the Defendant’s Letter K on the internet are infringements of the Claimant’s copyright in the Claimant’s Letter K.

A Friend…

Sufficient similarity?

57.	The Claimant does not claim originality in the wording of the saying which is a central element of the Claimant’s Work. She submits, however, that the typographical arrangement is original to her. The words “A friend / is one who / overlooks your / broken fence / and admires / the flowers / in your / garden” (where each “/” represents a line break) are lettered in a distinctive all-capital font which has a slightly uneven, hand-lettered look. The words making up each line are suspended from a string tied at each end to the surrounding floral and foliage frame with a bow. 

58.	The Claimant in her witness statement points to similarities between the Claimant’s “A friend” and the Defendant’s “A friend”. She submits that those similarities are even more apparent when you compare the Defendant’s Work with a mirror image of the Claimant’s Work. She states “When I draw out a papercut, I draw the work on the reverse of the paper and then turn it over when the piece is completed. The paper is black on the right side so one would not see the pencil drawing. Having studied the Defendant’s piece, my belief is that she drew her piece out whilst looking at my piece the right way around, but that when she turned her piece to the correct side, the similar aspects appear on the opposite side.”

59.	The Defendant denies copying. The Defence states “By comparing our own papercut and the Claimant’s papercut it is clear we have not copied the Claimant’s work. Our style is more basic as it was a practice cut, using few flowers and details. We designed different shaped flowers and leaves than the Claimant’s own work. The Claimant’s design uses a lot more flowers and detail… Our idea was for the quote to be surrounded by just a few cut flowers and birds as a way of us practicing the art of cutting flowers and letter… Rob Ryan also had the same idea.” It goes on to say “We went on to produce another piece from the same idea (attachment 10)”. 

60.	I have identified the following similarities in the Defendant’s “A friend” to the Claimant’s “A friend”:

•	The saying is displayed using the same line breaks.

•	The style of lettering is extremely similar – all capitals, unevenly hand-lettered in appearance, albeit the Claimant’s lettering is clearer and more elongated.

•	The words are suspended from strings attaching to the surrounding floral and foliage frame.

•	Some of those strings are tied with a very similar bow to that used by the Claimant (the left end of line 1, the left end of line 4) or display a motif suggesting a tied bow (the right end of line 3, the left end of line 6).

•	On the far left of line 2 there is a stylised bird shape with cut outs marking the wing and the eye. It is facing right, looking upwards, with two small legs and a fantail. It holds the stem of some heart-shaped foliage in its beak. It is almost an exact mirror image of the bird  holding heart shaped foliage seen on the far right of line 2 in the Claimant’s Work. 

•	On the far left of line 8 there is another stylised bird with cut outs to suggest the wing and the eye. It is facing right, and dipping downwards, looking at a worm. It is extremely similar to the bird seen on the far left of line 1 of the Claimant’s Work, which is also dipping downwards. The Claimant’s bird displays a fantail which is not visible in the Defendant’s bird. It also holds a flower in its beak which is not replicated in the Defendant’s bird. 

•	Left of centre on line 5 is a snail, pictured with its head and tail out of its shell, facing right. It displays two antennae and the shell is hollowed out to suggest a spiral. This is almost identical to the snail found in the same position on line 5 of the Claimant’s Work.

•	On the right of the centre of line 2 there is a small beetle with a rounded shell, three small legs, two short curved antennae and two hollowed out dots on the shell. This beetle is also found travelling up some foliage in the bottom left of the Defendant’s Work, opposite the last line and again to the left of the third line. Both of these beetles are almost identical in appearance to the small beetle seen travelling up the foliage in the top right of Claimant’s Work, albeit that beetle has three hollowed out dots on the shell, not two. 

•	In the foliage on the far left, opposite line 5, is a stylised and solid spider suspended from a single strand of silk. This is very similar to the spider suspended from a single strand of silk seen in the far right of the Claimant’s Work, at the end of line 4, albeit the Claimant’s spider has a flatter body and longer, less acutely angled legs.

•	A large daisy motif with hollowed out petals punctuates the work including at the top and bottom left corners. This is similar to the Claimants Work where a large daisy motif with hollowed out petals punctuates the work including in all four corners. The Defendant also places this daisy motif at the top of her work, centred above the word “friend”, at the bottom of the work below the “GA” of the word “garden” in the same positions as it is found in the Claimant’s Work. 

•	Small heart shaped single leaves attached to the stem from the point of the heart. They are either solid or partly hollowed out, usually unevenly with the majority of hollowing towards the point of the heart. They can be found in particular in the top left, held in the beak of the bird on the second line, in the foliage at the left and right and touching the 5th line, in the bottom left of the Work. These are similar to the heart shaped single leaves attached to the stem from the point of the heart found throughout the Claimant’s Work. Those are all hollowed out at the point of the heart with the rounded tops left solid. They are more extensively used in the Claimant’s Work. 

•	An unusual compound flower motif. This is made up of splayed lower petals, usually with some hollowing out to describe a “V”, with two reverse hollowed out “Vs” making a bud-like tip to the flower. Three can be seen below the word “garden”, three to the left of the 7th and 8th lines, one to the right of the 5th line, and another to the left of the second line. They are almost exactly the same in construction and hollowing as the motifs found in the Claimant’s Work, albeit the Claimant’s motifs each display two small stamens sticking out the top. There are also similarities in placement, namely three below the word “garden”, one to the right of the fifth line, two to the left of the second line.

•	A small tulip or crocus-shaped flower with serrated top edge and either solid or displaying two or three hollowed dots. These can be seen in the lower right corner of the work, along the top edge and at the right and left of the 6th line. The Claimant’s Work makes extensive use of a motif of the same shape and scale, also either solid or with three excised dots. 

•	A smaller daisy flower shape with a hollowed out centre and solid petals. I accept the Defendant’s point that this is a commonly used shape, however the significance of it is that it is the only other flower element used in the Defendant’s “A friend” from those already described. A slightly smaller scale daisy flower shape with hollowed out centre and solid petals is the only other flower shape used in the Claimant’s “A friend”. 

Prior Access?

61.	In the particulars of claim the date given for the creation of the Claimant’s “A friend” is 15 February 2009. The Claimant uploaded an image of the Claimant’s “A friend” onto her Facebook page on 6 January 2011. This showed only the top quarter of the work as having been cut. She uploaded an image showing progress in cutting out the design on 7 January 2011, at which time it was approximately half cut. She uploaded an image of the completed work on 9 January 2011. I have seen the dated screenshots of each of these attached to the Particulars of Claim. I accept the Claimant’s evidence that these images remained on that Facebook page for some time.

62.	The Defence does not state when the Defendant’s “A friend” was created. It states, however, that the Defendant’s Letter K was the first work her daughter cut out. This is contradicted by the message she posted on the Claimant’s Facebook page already referred to, in which she stated that the Defendant’s Rabbit was produced first and the Defendant’s Letter K second. Nevertheless I can infer from these contradictory statements that the Defendant’s “A friend” is likely to post-date both the Defendant’s Rabbit and the Defendant’s Letter K which puts its creation as some time after 28 July 2012. The Defendant has admitted looking at pictures of the Claimant’s Rabbit on the Claimant’s Facebook page before the creation of the Defendant’s Rabbit. Accordingly I am satisfied on the balance of probabilities that the Defendant had prior access to the images of the Claimant’s “A friend”, which were on the Claimant’s Facebook page at the time the Defendant has admitted looking at it.  

D shown that similarities do not arise from copying?

63.	The Defence contains a mere assertion that the Defendant did not copy the Claimant’s “A friend”. No explanation has been provided of how the Defendant came to create the overall design and the individual design details of the Defendant’s “A friend”, if she did not come by them by copying the Claimant’s Work. She has not satisfied me that the extensive and numerous similarities do not arise from copying, and I find, taking them together, that there is overwhelming evidence that they arise from copying and not coincidence.

Substantial part?

64.	Once again, because the Defendant’s “A friend” is not an exact copy of the Claimant’s “A friend” I must consider whether the copying is a substantial part of the Claimant’s original artistic work. Of that I am in no doubt. The extensive and numerous similarities make up a substantial part. 

Defences?

65.	 The Defence states “This papercutting was for educational purposes never intended for sale. It is laminated in my daughter’s school portfolio. It was done for educational research and remains in my daughter’s school portfolio and will not be destroyed as these will be later assessed for her GCSE in art.”

66.	It is clear that the Defendant is endeavouring to raise a defence under s32(1) CDPA on the basis that the copy was made for the purposes of her daughter’s GCSE Art course. However there are a number of problems with it. 

67.	First, this Defence can only be relevant to the case against the Defendant if the Defendant herself is the person “giving the instruction” pursuant to s32 (1)(a) CDPA. There is no suggestion that the Defendant is the instructor in the context of a GCSE art course. The primary instructor is presumably the teacher(s) at the Defendant’s daughter’s school. The Defendant has made it clear that her involvement in papercutting started at the same time as her daughter’s interest in the medium so I query whether she has taken an instructor’s role. Secondly the Defence is silent about whether sufficient acknowledgment of the Claimant’s copyright accompanies the copy as required by s32(1)(c) CDPA. Certainly no such acknowledgment accompanied the image posted on Facebook. Thirdly I am satisfied that the effect of posting the copy on Facebook is that of subsequently dealing with it by way of “communicating it to the public” pursuant to S32 (6) CDPA which means that I must treat it as an infringing copy for the purpose of that dealing even if s32(1)(a) is made out. I am not so satisfied that s32(1)(a) is made out.

Infringing Acts?

68.	 Accordingly I am satisfied that the copying of the Claimant’s “A friend” to create the Defendant’s “A friend” and the publication of the image of the Defendant’s “A friend” on the internet are infringements of the Claimant’s copyright in the Claimant’s “A Friend”.

Rabbit

Sufficient similarity?

69.	In her witness statement the Claimant states that after developing what she calls her “topiary style” in the shape of initial letters, she applied that style to other shapes and motifs within a folk art theme. She appends examples of works in the shape of a skull (pg 108 and 109 of the bundle), a dove (page 110) and a heart (page 118). She puts the Claimant’s Rabbit in this group of works. She describes how she arrives at the shape of a crouching rabbit which she describes as a specific choice (ie not a running or jumping rabbit). 

70.	The Claimant’s evidence is that she placed a central flowing stem running from the tail of the rabbit up and over the hind leg and to the tip of the ears. Subsidiary branches were placed off that main stem into both feet and to the nose and branched again to form the skeleton of the design. She placed flowers and leaves to populate the design, including large flowers to punctuate the paw and ear tips and to act as an eye. The Claimant points to similarities between the Claimant’s Rabbit and the Defendant’s Rabbit in her witness statement.

71.	The Defence states “We have hand drawn and designed a rabbit with flowers in our style which was for a friend who loves rabbits. The idea of a flowered rabbit is the same as the claimants but the design, cut and finished result is very different. Both our own and the claimant’s rabbit when compared are very different. We have not copied the claimant’s rabbit or the claimaint’s style. The style is our own style developed from my teenage drawings in ink of flowered initials.” In the Defence, the Defendant admits that she saw an image of the Claimant’s Rabbit, which inspired the creation of the Defendant’s Rabbit. 

72.	Attached to the Reply to Defence at Annex 4 is a screenshot of a Facebook message from the Defendant to the Claimant which includes the words “I had a lady show me a google image of the rabbit that I see is yours and she asked me if I could do something similar to it. I hand drew a picture similar to yours and my daughter cut it. If you look at the image though it is similar to yours it has not been a direct copy.” 

73.	I have identified the following similarities in the Defendant’s Rabbit to the Claimant’s Rabbit:

•	The almost identical pose and proportions of the rabbit. Both are a side view of a crouching rabbit facing right, with almost identical shape of head, split of ears, position and size of front paw, shape between front paw and back leg, shape of back leg, tail placement and curve of back.

•	A clear swooping line acting as a central spine from the tail of the rabbit, through the body, branching down into the front paw and up into the head and branching again into the ears, albeit it is less pure in the body region than the line seen in the Claimant’s Rabbit.

•	The termination of the front paw and left ear in a flower with five hollowed out heart-shaped petals centered with a star.

•	The existence of the same flower with five hollowed out heart-shaped petals elsewhere in the Defendant’s Rabbit placed in similar placement to those seen in the Claimant’s Rabbit, including where the front paw meets the stomach, on the rabbit’s rear just above the tail, on the rabbit’s rear haunch.

•	The use of hollowed out spade or tear shaped leaves with the centre retaining a piece of visible stem throughout the work.

•	An unusual motif of a pointed leaf split in half vertically with half hollowed out and half left solid used in various places in the work.

•	The use of a bell-shaped flower showing a single or double stamen echoing the unusual bell-shaped flower with serrated petals seen in the Claimant’s Rabbit.

•	The use of hollowed out round-petalled daisy-shaped flowers.

•	the use of the specific elements listed above in an even and unsymmetrical arrangement over the whole shape of the letter with a balanced amount of pattern and empty space in the Claimant’s “topiary style”.

74.	The same points arise in respect of the font, lack of a definite outline and even and asymmetrical arrangement of non-specific elements as discussed in paragraphs 27 – 28 above and I make the same findings. In my judgment these are not original to the Claimant and accordingly are not a part of the Claimant’s original artistic work protected by copyright. 

Prior Access?

75.	I have set out above the admissions made by the Defendant in the Defence and on a Facebook message appended to the Reply to the Defence, namely that the Defendant saw the Claimant’s Rabbit on the internet before creating the Defendant’s Rabbit. Accordingly I am satisfied that the Defendant did have prior access to the Claimant’s Rabbit. 

D shown that similarities do not arise from copying?

76.	The Defendant states in the Defence that the similarities seen in the Defendant’s Rabbit to those in the Claimant’s Rabbit do not arise from copying. It is difficult for understand how she can hope to maintain that stance given the admission made in the Facebook message set out above and given the extensive and numerous similarities between the two works. She has provided no additional evidence beyond a mere assertion. She has not satisfied me that the similarities do not arise from copying. 

Substantial part?

77.	The Defendant’s Rabbit is not a direct copy of the Claimant’s Rabbit so I must determine whether it is a substantial part. Given the extensive similarities between the two works I have no hesitation in finding that the common matters between them make up a substantial part of the Claimant’s Work.

Defences?

78.	The Defence states “We got attached to this piece of work; it took so long for my daughter to draw and cut that her teacher suggested we keep it for her GCSE work. The rabbit is in her school portfolio and was not, is not and will not be for sale. This is one of my daughters best and favourite pieces of art as she has developed the skill of papercutting.”

Later in the Defence it states “It [the Defendant’s Rabbit] was done for educational research and remains in my daughter’s school portfolio and will not be destroyed as these will be later assessed for her GCSE in art.”

79.	Again, the Defendant is appears to raise a defence under s32(1) CDPA on the basis that the copy was made for the purposes of her daughter’s GCSE art course. The same problems arise in relation to this work as they do in relation to the Defendant’s “A friend” as set out in paragraph 63 above. For the same reasons I am not satisfied that this defence is made out.

Infringing Acts?

80.	 I am satisfied that the copying of the Claimant’s Rabbit to create the Defendant’s Rabbit and the publication of the image of the Defendant’s Rabbit on the internet are infringements of the Claimant’s copyright in the Claimant’s  Rabbit.

Letter D

Sufficient similarity?

81.	The Claimant has not created a letter D and so does not claim that the Defendant’s Letter D is a copy of a work of the Claimant. She does claim that the Defendant’s Letter D resembles the distinct and original style of the Claimant’s Works, in particular what she calls her signature “topiary style”. She says that the similarities between the Defendant’s Letter D and the Claimant’s Works are so extensive that they constitute a substantial part and as such infringe the Claimant’s copyright. In particular, the Claimant points to the other initial letters she has cut in this style. In the Claimant’s Witness Statement she points to a number of similarities she says can be seen in the Defendant’s Letter D to the Claimant’s Works. 

82.	The Defence denies that the Defendant has copied the Claimant’s style of papercutting. It states “We have hand drawn the initial D in our own style our own way.”

83.	I have identified the following similarities between the Defendant’s Letter D and various of the Claimant’s Works.

•	A central swooping spine following the shape of the letter as seen in the Claimant’s Letter S and the Claimant’s Letter K.

•	The use of small infill berries and star shaped thorns throughout the Defendant’s Letter D as seen in many of the Claimant’s Works including the Claimant’s Letter S and the Claimant’s Rabbit.

•	A flower with five hollowed-out heart-shaped leaves and a solid star-shaped centre used at the bottom centre and bottom left and top slightly left of centre in the Defendant’s D as seen throughout the Claimant’s Letter S and also in the Claimant’s Rabbit.

•	The use in the bottom inside edge of the Defendant’s D of a fan-shaped flower with rounded hollowed-out petals, similar to that seen in various places in the Claimant’s Letter S and the Claimant’s Skull appended to the Claimant’s Witness Statement (the “Claimant’s Skull).

•	serrated leaves, solid except for the hollowing out of the central spine, as seen in the Claimant’s Letter S and the Claimant’s Letter K.

•	the use of a simple daisy motif with rounded hollowed out petals as seen in the Claimant’s Skull.

•	A large flower with 5 tear-shaped petals, hollowed out save for a central “crease” on each, with a hollowed out centre as seen in the Claimant’s Letter K and other works.

•	use of two simple birds with hollowed-out wings and eyes each standing in profile on two short legs as seen in the Claimant’s “A friend”.

•	small tear-shaped leaves which are half hollowed-out, half solid on each side of the central vertical as seen in the Claimant’s Rabbit.

•	the use of the specific elements listed above in an even and unsymmetrical arrangement over the whole shape of the letter with a balanced amount of pattern and empty space in the Claimant’s “topiary style”.

Prior Access?

84.	The Defendant says that on the 25 May 2013 a customer at a craft fair asked for a letter S and a letter D in a similar style to their papercut letter O.  According to her evidence the Defendant’s Letter S was completed on 1 June 2013 and on the same date the design of the Defendant’s Letter D was started. The work was completed on 9 June 2013. 

85.	I am satisfied for the reasons given elsewhere in this judgment that by the time the Defendant’s Letter D was started the Defendant had prior access to a number of the Claimant’s Works including the Claimant’s Rabbit, the Claimant’s “A friend”, the Claimant’s Letter K and the Claimant’s Letter S. I am satisfied that by this stage the Defendant also had prior access to other works on the Claimant’s Facebook page including the Claimant’s Skull (which the Claimant states, and I accept, was one of the first topiary style works she produced). Accordingly I am satisfied that the Defendant had prior access to the various works of the Claimant in which the similarities can be seen.

D shown that similarities do not arise from copying?

86.	The Defence states ”We deny that we have copied the claimant’s style of papercutting. We have hand drawn and hand cut the initial D in our own style our own way”. No other explanation has been provided of how the Defendant came to create the overall design and the individual design details of the Defendant’s Letter D if she did not come by them by copying the Claimant’s style. 

87.	This work was created by the Defendant at the same time and for the same purpose as the Defendant’s Letter S (being works commissioned together for the same client). I have already found that the Defendant’s Letter S is an infringing copy and this simply strengthens my belief that it is more likely than not that the similarities between the Defendant’s Letter D and various of the Claimant’s Works arise from copying the Claimant’s style and not coincidence.

Substantial part?

88.	No direct copy has been made – the Claimant has not produced a Letter D – so the issue is whether the similarities identified in the Defendants Letter D to the Claimant’s works when taken together and cumulatively, can be said to have resulted from the copying of a substantial part of one or more of the Claimant’s Works. In my view, they can. The similarities between the Defendant’s Letter D and the Claimant’s Letter S are sufficiently extensive and numerous to form a substantial part of the Claimant’s Letter S.

Defences?

89.	The Defendant admits that the Defendant’s Letter D was produced on commission for, and sold to, a woman she met at an art fair. It raised £25 inclusive of a glass frame. No specific defence provided for by the CDPA is raised by the Defendant in respect of this work. 

Infringing Acts?

90.	Accordingly I find that the copying of the Claimant’s Letter S to create the Defendant’s Letter D, the sale the Defendant’s Letter D to a third party and publication of the image of the Defendant’s Letter D on the internet are all acts which infringe the Claimant’s copyright in the Claimant’s Letter S0 . 

Cats

Sufficient similarity?

91.	The Claimant has not created a work in the shape of a cat and so does not claim that the Defendant’s Black Cat and the Defendant’s Pink Cat are copies of a work of the Claimant. She does claim that the Defendant’s Black and Pink Cats resemble the distinct and original style of the Claimant’s Works, in particular what she calls her signature “topiary style”. She says that the similarities between the Defendant’s Black and Pink Cats and the Claimant’s Works are so extensive that they constitute a substantial part and as such infringe the Claimant’s copyright. In particular, the Claimant points to the other animals she has cut in this style, especially the Claimant’s Rabbit and the Claimant’s Dove (annexed to the Reply to Defence). In the Claimant’s Witness Statement she points to a number of similarities she says can be seen in the Defendant’s Black and Pink Cats to the Claimant’s Works. 

92.	The Defence states “Neither the black cat nor the pink cat has been copied from the Claimant who has not created a cat. We hand drew and hand cut the both cats in our own way. The pink cat was the first cat that we cut and we developed our style on the black cat to incorporate eyes and a collar. We cut for ourselves by ourselves as we have a love of cats. We still have them. They were not and never will be for sale.”

93.	I have identified the following similarities between the Defendant’s Black and Pink Cats and the Claimant’s Works:

•	In both, a central swooping spine follows the shape of the animal, off which branches flow to make the skeleton then populated with flowers and foliage as seen in the Claimant’s Rabbit.

•	The feet of both cats is punctuated by a flower in the same way and of the same type as that used to punctuate the paw of the Claimant’s Rabbit (and as that flower is also seen in the Claimant’s Letter S).

•	The tail of the black cat is terminated by a flower in the same way and of the same type to that used to terminate the ear of the Claimant’s Rabbit.

•	In both cats flowers are placed to denote features such as eyes, as seen in the Claimant’s Rabbit.

•	In both cats serrated leaves are used similar to those in the Claimant’s albeit fully hollowed out.

•	In both cats berries and thorns are used as fillers as seen in many of the Claimant’s works including the Claimant’s Rabbit.

•	In both cats teardrop shaped leaves, hollowed out with part of stem left in as used and are very similar to those seen in the Claimant’s Rabbit although some are more heart shaped than teardrop shaped.

•	In both butterfly and insect motifs are used in a similar way to that seen in the Claimant’s “A friend”. 

•	In the Defendant’s Black Cat a simple profile bird is used which is almost identical to that in the Claimant’s “A friend”.  

•	In both cats a striped pomegranate motif is used similar to that in the Claimant’s Letter S.

•	In both a simple daisy shape is seen similar to that used in the Claimant’s Rabbit.

•	In the black cat a hollowed-out bell shaped flower with two solid outer petals and two stamens is used which is very similar to the hollowed-out bell shaped flower with two solid outer petals and a serrated edge seen in the Claimant’s Rabbit.

•	the use of the specific elements listed above in an even and unsymmetrical arrangement over the whole shape of the animal with a balanced amount of pattern and empty space in the Claimant’s “topiary style”.

Prior Access?

94.	The Defence does not state when the Defendant’s Black and Pink Cats were created, merely that the Pink Cat was created before the Black Cat. However I have found from the evidence that the first two works created by the Defendant was the Defendant’s Rabbit and then the Defendant’s Letter K so these works must post-date those. Accordingly for the reasons given previously I am satisfied that the Defendant had prior access to both the Claimant’s Rabbit and the Claimant’s “A friend” before the creation of these works.   

D shown that similarities do not arise from copying?

95.	The Defence makes a mere assertion that the Defendant’s Black and Pink Cats do not arise from copying and points out that the Claimant has not made a work in the shape of a cat.

Substantial part?

96.	Clearly there is no question of direct copying here – the Claimant has not produced a work in the shape of a cat at all let alone a black one and a pink one. The issue is whether all of the similarities identified in the Defendant’s Black Cat and the Defendant’s Pink Cat, when taken together and cumulatively, can be said to have resulted from the copying of a substantial part of one or more of the Claimant’s Works. In my view, they can. Even ignoring the three elements which I have found are similar to elements in the Claimant’s “A friend” and the Claimant’s Letter S, what is left is a substantial number of similarities between each of the Defendant’s Black Cat and Pink Cat on the one hand and the Claimant’s Rabbit on the other. Those similarities are, in my view, sufficiently extensive and numerous to form a substantial part of the Claimant’s Rabbit.

Defences?

97.	The Defence states “The pink cat was done for educational research and remains in my daughter’s school portfolio and will not be destroyed as these will be later assessed for her GCSE in art. The Black cat was done as practice cuts. They are personal pieces of art to us.”
 
98.	Accordingly, the Defendant appears to raise a defence under s32(1) CDPA in relation to the Defendant’s Pink Cat only, namely that it was made for the purposes of her daughter’s GCSE Art course. The same problems arise in relation to this work as they do in relation to the Defendant’s “A friend” as set out in paragraph 63 above. For the same reasons I am not satisfied that this defence is made out.

Infringing Acts?

99.	Accordingly I find that the copying of the Claimant’s Rabbit to create the Defendant’s Black Cat and the Defendant’s Pink Cat and publication of the image of the Defendant’s Black Cat and the Defendant’s Pink Cat on the internet are all acts which infringe the Claimant’s copyright in the Claimant’s Rabbit.

Remedies

100.	The Claimant has been successful on all counts of her claim. She seeks an injunction preventing the creation, sale and publication of any works infringing the Claimant’s Works or copying any works of the Claimant, destruction of infringing works, damages or damages on account of profits, interest and costs including court fees of £500. 

101.	Clearly she is entitled to an injunction. I make the following comments in relation to the remainder of the order I now make:

102.	The Defence states that the Defendant will not destroy any infringing works which her daughter seeks to use in her GCSE portfolio. The order provides for the destruction of all of the infringing works and I must remind the Defendant that court orders must be complied with.  

103.	In respect of damages, the Defendant claims to have sold only two pieces (The Defendant’s Letters S and D) for a total cost of £50 to a lady who commissioned her after seeing her work at a craft show. The Defence says that the Defendant had previously set up a Facebook page called “FELTastic” from which she sold felted creations for the purposes of raising money for cat rescue charities. It states “PAPERtastic is a Facebook place to display papercutting designs; purely to raise funds for ACE Cat Rescue. To get us all started all the papercut photos were uploaded onto the new PAPERtastic page by a friend for us to edit, comment on, amend or delete as necessary. Many of the creations that were on display at the time (26 May 2013) were not for sale, they were school projects that had been uploaded in error.”

104.	The Claimant is sceptical that only two infringing works have been sold by the Defendant. She points out that the Defendant’s  Facebook page was set up specifically to raise money, that a number of messages posted by third parties on it ask how much various types of works, including the infringing works, cost and that the Defendant would be unlikely to be at a craft show selling her wares if she had not had any success selling from her Facebook site. The Claimant believes the Defendant has displayed infringing works at a number of craft shows. I share the Claimant’s scepticism. However the Claimant says that she is more interested in the injunction than in damages and suggests that the fairest way to compensate her is to award her what she has lost by not receiving the two commissions that we know went to the Defendant instead. I agree. That gives the damages figure contained in the order. 

105.	As to costs, the Claimant properly limits her claim to small claims track costs of £260 plus £500 court fees and I so order.  

District Judge Clarke
3 December 2013