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Court: Chancery Division

Judge: Patten J

Date of judgment: 17 Jun 2003 Summary: Intellectual Property - Copyright - Commission - s.4(3) Copyright Act 1956 - Licence - Infringement

Instructing Solicitors: Goldkorn Mathias Gentle for the Claimant; Clintons for the Defendant

Facts The claimant photographed Elvis Costello in 1977 in a photo-shoot arranged by Stiff Records. The second defendant was the beneficiary of the estate of the designer of a silk-screen print based on the claimant’s photograph. The first defendant used part of the silk-screen print on the front of a booklet accompanying a 1999 “Very Best of” Elvis Costello album.

Issue (1) Whether the claimant owned the copyright in the photograph. (2) Whether the claimant had licensed use of the photograph in the print for all purposes. (3) Whether the second defendants had infringed the claimant’s copyright.

Held There had been no commission within the meaning of s.4(3) of the Copyright Act 1956 and the claimant owned the copyright in the photograph. Any licence to use the print did not extend to the first defendant’s use of it. The claimant’s copyright in the photograph had been infringed and he was entitled to a remedy.

Comment This decision supports the interpretation of ‘commission’ in the Copyright Act 1956 as requiring ‘an agreement to pay in advance’. For older cases supporting this interpretation see: Hartnett v Pinkett (1953) 103 L Jo 204; Sasha Ltd v G Stonesco (1929) 45 TLR 350 (1911 Act) and Apple Corps Ltd v Cooper [1993] FSR 286. Gabrin v Universal Music Operations is very much a case that turned on its facts – there was no evidence of an agreement to pay in advance.

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