This case was mainly concerned with the issue of subsistence of copyright. A freelance photographer took a picture during an Oasis photo-shoot of the scene that was chosen to feature in their album cover. He published and sold it as a poster in the Sun newspaper. The musician who had arranged the scene together with the group's record company and licensee brought proceedings for copyright infringement and breach of confidence and moved for interlocutory injunction to restrain further publication until trial.
Photographs of the defendant's picture as featuring on the Sun newspaper on April 19, 1997
Photographs of the plaintiffs album cover and CD. The album was released on August 21, 1997.
Lloyd J held that, while there was an arguable case for breach of confidence, there was no copyright infringement. The arrangement of the scene was merely an assembly of ‘objets trouvés’ and, from a copyright perspective, it was neither a sculpture nor a collage. Since copyright did not subsist in the arrangement of these objects, the photograph was neither a copy of a copyright work nor a copy of the official photograph; it was merely a shot of the same scene.
To Lloyd J,
“…[i]f the subject matter is not itself a copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other…two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are… ”
What is more, Lloyd J found that the composition of the scene was intrinsically ephemeral to qualify for copyright protection.
Full citation: Creation Records Ltd. v News Group Newspapers Ltd. [1997] EMLR 444
