LITERARY SKILL

Manawatu Standard, Volume LVI, Issue 202, 16 July 1936, Page 4

LITERARY SKILL

DENTIST’S ADVERTISEMENT. QUESTION FOR COURT. Per Press Association. WELLINGTON, July 15. Whether or not a newspaper advertisement for dental plates is an original literary work within the meaning of the Copyright Act was the question at issue at the Supreme Court in a. case in which Francis Allan Cotton, dentist, and Edmund Wallace Cotter, advertising consultant, both of Christchurch, claimed £SO as damages from Harold William Frost, dentist, for alleged infringement of copyright of an advertisement and an injunction to restrain him from further infringement. It was claimed tha.t there is literarv skill in such advertising. Tile defence said that plaintiffs must prove literary skill and must prove original authorship. Counsel for plaintiff, Mr E. P. Bowie, of Christchurch, said the case was of the utmost importance to the commercial community. There were very few decisions on the points of this branch of the law and in fact I there was practically no authoritative decision on the subject. The case was of importance in that it affected advertisers, their agents and newspaper proprietors, because the facts of the ease showed tha.t plaintiff inserted an advertisement in a Wellington newspaper and his 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 the advertisement could be “pirated’ as counsel submitted bad been done in the present case. Defendant’s advertisement was . “absolutely a slavish copy” of plaintiff’s with the gxeeption of a slight difference of type in one place and a difference in the arrangement of the advertisement. Plaintiff Cotton had introduced entirely new features in denial advertising in New Zealand, continued Mr Bowie, anil to advise him in the matter he had employed Cotter at a weekly fee as advertising consultant. The main theme of the series of advertisements in the ease was that the dental plates gripped the gums firmly. A series of advertisements usually followed a “master” advertisement, which was generally the product of an original inventive thought. Counsel contended that as defendant had stolen plaintiff’s thunder, this particular advertisement could not be used again. Mr E. C. Wiren, for defendant, claimed that plaintiffs must first prove that the advertisement was a literary work and, secondly, that plaintiffs or either of them were the author of it. “We submit that they must prove both those matters ancl that it is not sufficient that they prove either,” said counsel. “*\ e say they have not proved either. “Regarding the first point,” continued counsel, “we say that this advertisement requires no literary skill whatever and that it is merely a 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. Plaintiffs have not shown that they are in any way. His Honour: It is the stringing together that I always understood was 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 defined by the Act, though the Act did include maps, charts, plans and compilations.

Air Wiren asked for a non-suit on the legal position, but at the suggestion of Flis Honour evidence for the cleienee was taken first.

Gordon MeCallum, manager for Frost, produced technical hooks to show that the phrases used in Cotton’s advertisements had a common origin in hooks available to anyone. Counsel said the reason Frost copied the advertisement was that lie considered it intended to mislead the public into thinking that the United Dental Service had some special method of making dental plates not possessed by other dentists. He felt lie was entitled to tell the public he could do the same as the United Dental Service at the same price. His Honour commented that lie could have told that in his own way without copying another man’s advertisement. Decision was reserved.