Daemonlinks Limited v Lucy Marion Brown

On an application for summary judgment, the court must decide whether the claim or defence has a realistic, rather than fanciful, prospect of success. It must avoid a mini-trial, but need not accept unsupported or contradicted factual assertions at face value. Summary judgment is appropriate where the evidence permits a short point of law or construction to be decided fairly. It should be refused where fuller investigation may add materially to the evidence or where a genuine factual dispute remains. Copyright ownership arising from employment may be determined summarily where the employment terms and evidence establish that the work was created in the course of employment. However, disputed evidence about another person’s creative contribution and a resulting assignment of rights may require trial.

The claimant sought summary judgment in a copyright action concerning two films. It claimed ownership of the copyright and relief for infringement. The defendant had been employed as the claimant’s media manager and accepted that she had worked on the films, but disputed the claimant’s ownership and alleged that another individual, Andrew Wildey, had made a significant creative contribution and assigned rights to her.

The court initially considered the pleaded issues of employment and whether the films were created in the course of employment. Further evidence introduced a factual dispute about Wildey’s involvement and the effect of an apparent assignment. The central questions were whether the defendant had a realistic prospect of establishing rights in the films and whether the claim could fairly be determined without trial.

1. The court applied the summary judgment principles stated in EasyAir v Opal Telecom Limited [2009] EWHC 339 Ch, as approved in AC Ward & Sons Limited v Catlin (Five) Limited [2009] EWCA Civ 1098. The court must assess whether the relevant case has a realistic prospect of success, avoid conducting a mini-trial, and consider evidence reasonably expected to be available at trial. It may nevertheless decide a short point of law where the evidence is sufficient and the parties have had a fair opportunity to address it.

2. Ms Brown was plainly employed by the claimant under a written contract. Her contractual duties included creating videos on agreed topics. There was no realistic prospect of establishing that her work on the two films fell outside the course of her employment. Nor was there a realistic prospect of proving that an alleged verbal assurance transferred ownership of the work to her. The alleged assurance was inconsistent with the pleaded case and the written employment arrangements.

3. As between the claimant and Ms Brown, the claimant was at least the copyright owner of the Dover Piece and at least a co-owner of the Crobar Piece. A sole or joint copyright owner is entitled to restrain infringement: Powell v Head (1879) 12 Ch D 686.

4. Those conclusions did not dispose of the application. Evidence produced shortly before the hearing suggested that Andrew Wildey may have contributed creatively to both films and that he had apparently assigned his rights to Ms Brown. The extent of his involvement, whether he acquired copyright, and whether he assigned it were disputed factual issues which could not fairly be resolved summarily.

5. Although the allegation concerning Wildey was unpleaded and raised late, the court permitted amendment of the Defence. The defendant was a litigant in person and strongly asserted the point. After amendment, the Defence could not be said to have no prospect of succeeding at trial. The application for summary judgment was therefore dismissed.