When created, images and photographs qualify for copyright protection provided they meet the de minimus originality requirements set out under the Copyright, Designs and Patents Act UK. Originality in this context means that they have not been copied, and a de minimus level of skill, labour and judgment in its creation be present. Images, photographs, paintings, graphic works, collages, engineering drawings, buildings and models of buildings equally qualify for protection under the Act.
In the decision of Designers Guild Limited v Russell Williams (Textiles) Limited, Designers Guild Ltd  1 WLR 2416, the House of Lords considered the similarities and differences between two paintings and clarified the set for infringement as it applies to artistic copyright works in the UK.
In Designers Guild Limited v Russell Williams (Textiles) Limited, Designers Guild Ltd designed, manufactured and sold of textiles. Designers Guild created a design named Ixia 1994. The design consisted vertical stripes of alternate colours with flowers placed randomly across the vertical stripes of colour. The design was impressionistic in style, characterised by imprecise brushwork and rough finish.
It was alleged that another designer and manufacturer, Russell Williams Ltd sometime later copied the design and sold it as their own Marguerite design.
The designs were not identical. There were similarities, but also significant differences between the two designs.
Section 16(3) of the Copyright, Designs and Patents Act 1988 expands the exclusive rights of the owner of copyright by making it an infringement of copyright should a person perform one of the exclusive rights in respect to a 'substantial part' of the work either indirectly or directly.
The doctrine of a substantial part extends the reach of copyright law in two ways. It dispenses with the requirement for literal, exact or verbatim copying. Copying may take place by making modifications to the original work and incorporating those modifications into a new work. The Court considered the extent of the similarities and differences is a key consideration in deciding whether the entire work had been copied, and a work will infringe where the essential features and substance of the original has been adopted.
If those copied elements are sufficiently extensive such that a substantial part of the independent skill, labour and judgment of the original author, copyright will be infringed.
Process of Assessing Copyright Infringement
The test for infringement is whether a substantial part of the skill, labour and judgment invested in the original work has been reproduced in the later work.
Identification of Similarities and Differences
The court held that the first step in an action for copyright infringement in an artistic work, is to identify those elements of the defendant's work that have been copied from the copyright work. This visual comparison includes identifying the similarities and the differences between the two copyright works in question. The objective is to ascertain whether the similarities are 'sufficiently close, numerous or extensive' to arise as a result of copying, rather than independent creation or coincidence. Unoriginal parts of the alleged copied image are disregarded if they are commonplace, unoriginal or consist of general ideas.
In the event that the claimant shows that there is a sufficient similarity between the two images in the aspects alleged to be copied, and is able to prove that the defendant had access to the image, it is then for the defendant to show the incidences of similarity did not result from copying. Whether similarities or differences exist is a question of fact rather than law.
The differences in the images also require consideration. The differences may indicate the image was an independent creation and displace the inference that the image was copied.
The Taking from the Original Work
After the instances of copying have been identified by reference to the features incorporated into the image, the court progresses to the next step to assess whether the parts that are taken constitute the entire copyright work or a substantial part of it. This is a question of law. Whether a substantial part has been taken is a qualitative test rather than a quantitative test. A value judgment is therefore made on the importance of the copied aspects of the claimant's image and not the defendant's. In fact the defendant's image is put to one side for the purposes of assessing whether a substantial part has been taken.
The courts have indicated that this is largely a matter of impression. The cases tend to unhelpful in assessing whether a substantial part has been taken as judges have a propensity to move from a determination that a substantial part has been taken to judgment.
The operation of the law in taking a substantial part may operate two ways. Firstly copying a substantial part may take place by the copying of a discernable part of a copyright work: a particular part of an image, part of a sentence or a phrase.
Secondly, a substantial part may be taken even if no particular part of the image has been taken where taking or copying relates to the work as a whole. The form of taking for cases such as these is not based on exact copying. It is copying the original work with variations or modifications. Translations and alternate versions of a work are instances of such copying.
Copying in the Current Case
The judge at the hearing found that there were seven relevant similarities between the two designs. There were also differences in the painting due to differences in the impressionistic styles. For instance, the Ixia design was smaller and more delicate than the competing Marguerite design.
The trial judge found at the hearing that the design had been copied.
The Court of Appeal overturned the decision on the basis that the work on the whole looked the same. Designers Guild appealed to the House of Lords on the basis that this was an erroneous application of the test for infringement. The test is not whether the images look the same, but whether the similarities and differences amount to a substantial taking of the skill, labour and judgment in the image.
The cumulative effect of 7 instances of copying and the detail of the similarities persuaded the House of Lords that the design had been copied.
The significance of the House of Lords decision rests in part with the ruling that copyright infringement relies on whether the defendant has taken a substantial part of the original copyright work - it is not whether one design did look or did not look like the allegedly infringing design. This may seem counter-intuitive. The reason for the distinction is that an analytical appraisal must be conducted in respect of the similarities and differences between the two images. A different result may be reached, as was the case in this instance at the Court of Appeal if a different test is applied.