COPYRIGHT LAW

Evening Post, Volume CXXII, Issue 13, 15 July 1936, Page 12

COPYRIGHT LAW

AN IMPORTANT CASE

DENTIST'S ADVERTISEMENT

INJUNCTION SOUGHT

Whether a newspaper advertisement for dental plates was or was not an original literary work within the meaning of the Copyright Act, 1913, was a question at issue in the Supreme Court today when Francis Allan Cotton, a dentist, and Edmund Wallace Cotter, an advertising consultant, both of Christchurch, claimed from Harold William Frost, a Wellington dentist, £50 damages for an alleged infringement of copyright of an advertisement and an injunction to restrain him from further infringement.

Mr. E. S. Bowie, of Christchurch, appeared for the plaintiffs, and Mr. E. C. Wiren for the defendant. The case was heard by Mr. Justice Johnston.

The plaintiff Cotton, in his statement I of claim, said that he was a registered dentist carrying on his profession at Christchurch and at Wellington under the name of the United Dental Service. Both he and the defendant advertised extensively, with particular reference to the manufacture and sale of dental plates. On February 22. 1936, the plaintiff inserted in the "Evening Post" an advertisement of original composition, wording, and arrangement. On February 29, continued the statementof claim, the defendant infringed the copyright of the plaintiff by publishing in "The Post" an advertisement which contained all the words, phrases, and descriptions in the plaintiff's advertisement with letterpress in each I case of the same size, deleting only the name and place of business of the plaintiff and substituting the name and place of business of the defendant. On March 7 the defendant repeated the infringement by publishing the advertisement in the "Dominion." The defendant was likely to continue to infringe the copyright unless re-1 strained by the Court. The plaintiff accordingly claimed an injunction to restrain the defendant, and £50 damages. DEFENDANT'S ANSWEII In his statement of defence Frost said that he carried on business also | in Auckland, Hamilton, Wanganui, and New Plymouth, and that he resided in j Auckland. He admitted that the plaintiff inserted an advertisement in "The; Post" but denied that it was an original literary work within the meaning of the Copyright Act, 1913. He admitted that he had inserted in "The Post" an advertisement containing all the words, phrases, and descriptions contained in the plaintiff's advertisement, but said that such words, phrases, and descriptions in the advertisement inserted by him were arranged in a manner quite different from the arrangement of the plaintiff's advertisement and appeared in conjunction with photographs which formed no part of the plaintiff's advertisement.' The defendant said that the words, phrases, and descriptions .could not be the subject matter of copyright and further that the plaintiff was not the author of the words, phrases, and descriptions, and was not and never had been the owner of any copyright therein. The defendant denied any infringement and for a further defence said that at the date of publication of the advertisement he was not aware arid had no reasonable grounds for suspecting that copyright existed. "NO AUTHORITATIVE DECISION." "This is a most unusual case and one of the utmost importance to the commercial community," said Mr. Bowie, in opening his case. "There are very few decisions" on points of this branch of the law, and in fact there is practically no authoritative decision on the subject. The case is of importance in that it affects advertisers; their agents, and the newspaper proprietors, because the facts of the case show that the plaintiff inserted an advertisement in a Wellington newspaper and a rival, the defendant, copied the letterpress verbatim." The Court, continued Mr. Bowie, would be asked to decide the extent to which an advertisement might be copyright, in whom the copyright would rest, and whether an advertisement could be "pirated" as counsel submitted had been done in the present case. The defendant's advertisement was an "absolutely slavish copy" of the plaintiff's, with the exception of a slight difference of type in one place and a difference in the arrangement of the advertisement. The plaintiff Cotton had introduced entirely new features in dental advertising in New Zealand, continued Mr. Bowie, and to advise him in the matter he had employed Cotter at a weekly fee as an advertising consultant. The main theme of the series of advertisements in the case was that the dental plates gripped the gums firmly. A series of advertisements usually followed a "master", advertisement, which was generally the product of original inventive thought.

Evidence would be led to show, continued. Mr. Bowie, that there had been an obvious "pirating" of the plaintiff's advertisement, that the defendant had acted in a mala fide way, and that after the issue of the writ another advertisement was copied. As the defendant had stolen the plain-

tiff's thunder, said counsel, this particular advertisement could not be used again by plaintiff. In reply to a question by his Honour Mr. Wiren said that there was no substantial dispute as to the facts. The defence contended that the work was not original and could not be the subject of copyright. Cotton and Cotter both gave evid« ence and were cross-examined at length. CASE FOR THE DEFENCE. "We say that the plaintiffs must prove first that this advertisement is a literary work and secondly that the plaintiffs, or either of them, is or are the author of it," said Mr. Wiren. "We submit that they must prove both those matters and that it is not sufficient that they prove either. We say they have not proved either. "Regarding the first point," continued counsel, "we say that this advertisement requires no literary skill whatever, that it is merely the stringing together of a few ordinary words of the English language, and a few phrases which we say have been in common use in the dental profession for years and years. The plaintiffs have not shown that they are new in any way."

His Honour: It's the stringing together that I always understood was the literary work.

Mr. Wiren continued that in order to bring the advertisement within the meaning of the Copyright Act it had to be a literary work, which was unfortunately not denned by the Act, though the Act did include maps, charts, plans, and compilations.

"Is the advertisement a compilation?" asked his Honour.

"In most cases the word is intended] to i-efer to compiling figures or suchlike," replied counsel. He continued that it had been held that there could be no copyright in a mere collection of words which had not involved any literary skill. Ideals and opinions were not the subject of copyright; only the form in which they were expressed was., and then, only to the extent that

a substantial part of the form must not be plagiarised.

Mr. Wiren asked for^ a non-suit on the legal position, but at the suggestion of his Honour, the evidence for the defence was taken first. Gordon McCallum, a registered dentist, employed by H. W. Frost, was called by Mr. Wiren to give evidence.