Conrad Lant v Plastic Head Music Distribution Limited & Anor

Copyright in a simple artistic design may subsist where the work reflects the author’s intellectual creation and results from free and creative choices. A low degree of creativity, simplicity or modest artistic quality does not prevent originality.

Authorship and ownership must be proved on the evidence. Where historical evidence is affected by the passage of time and litigation, documentary evidence and known or probable facts may provide the sounder basis for findings, while oral evidence should be assessed with appropriate caution.

Copyright infringement follows where unauthorised use is proved, but damages for flagrant infringement require the statutory criteria to be satisfied on the facts.

The claimant and second defendant were former members of the band Venom. The claimant claimed authorship and ownership of copyright in six artistic works associated with the band. The defendants counterclaimed in relation to two photographs and alleged that some of the claimant’s designs were insufficiently original or were authored by the second defendant.

The judgment concerned liability only. The court had to determine subsistence, authorship and ownership of the disputed works, and the consequences for alleged unauthorised merchandising. Neither party pleaded a partnership or joint authorship case.

1. Copyright ownership. The claimant succeeded in relation to Venom Logo 2, Goat Head Lucifer, the disputed Sigil of Baphomet and the Legions Logo. The second defendant was found to be the author and owner of Venom Logo 1. Neither party proved authorship of the At War with Satan design. The second defendant failed to prove ownership of either photograph.
2. Assessment of evidence. Given the age of the events and the limited contemporaneous documentation, the court assessed the witnesses cautiously. Documentary evidence, inferences from known or probable facts, internal consistency, changes in the case and the effects of litigation on memory were material considerations. The defendants’ shifting evidence, particularly concerning the photographs, was given little weight.
3. Originality. The originality threshold was low. Copyright requires the author’s own intellectual creation, expressed through free and creative choices. The court applied that approach to the disputed logos and Goat Head Lucifer. The differences between Logo 1 and Logo 2, including the altered V, N and M, demonstrated sufficient creative freedom. The simplicity of a design did not prevent copyright protection.
4. Infringement. The parties accepted that the infringement conclusions followed the subsistence and ownership findings. The available images were insufficient to determine every item of merchandise or the precise dates of infringement. Those matters were left for further steps.
5. Flagrancy and relief. None of the infringements found was flagrant. Flagrancy damages would not have been just in the circumstances or effective, proportionate and dissuasive. The appropriate relief was deferred to a form of order hearing.

First-instance liability judgment. No appellate history was stated in the judgment.