Recently promoted Wolverhampton Wanderers F.C. (“WW”) is the recent subject of a copyright infringement claim. The claim, issued by a retired businessman based in the midlands, claims that WW’s famous “wolf” logo is copied from a drawing he produced over 50 years ago.
The claimant, Peter Davis, alleges that he created a number of geometric-style designs depicting various animals in the early 1960s whilst at school, and that WW’s current logo is a direct copy of one such design.
Although we haven’t studied the basis for Peter Davis’ claim in detail, our view is that he is likely to face an uphill battle in demonstrating infringement.
The problem isn’t that Mr. Davis has no rights in his works, however – quite the opposite. Copyright is an unregistered right having arisen automatically on creation of his drawings in the 1960s. Therefore, such rights allow Mr. Davis to prevent others from copying and making derivatives of substantial parts of his artistic work without his permission.
But as these rights are unregistered, there are a number of things he must demonstrate in order for his claim to be successful, including the following:
a) he must show reliable evidence, not only that his work exists, but also that it pre-dates the WW logo;
b) he must show that his work was made available to the public prior to the creation of WW’s logo;
c) he must also show that WW’s logo was copied from his work (i.e. that it was not independently created); and
d) he must show that WW’s logo uses a “substantial part” of his work.
If any of the above points do not fall in Mr. Davis’ favour, his claim will likely fail.
Roger Wyand QC, legal representative for WW, has submitted that the claim falls at the first hurdle as the original work “doesn’t exist” and that there is no “documentary evidence of the work or its existence”. Typically a signed and dated work which can be verified as having arisen at the time of alleged creation is the best way to demonstrate the date at which the work arose, and therefore the date from which copyright protection subsists. It seems that Mr. Davis has struggled to show such verifiable evidence to date.
It is also not enough that the works are merely similar. Mr. Davis must be able to show that WW have used a “substantial part” of his work (based on a qualitative, as opposed to a quantitative, assessment). As what amounts to a “substantial part” is not an objective test, a host of arguments can be made as to whether any similarities between the works are “substantial” or not.
Further, even if the works are identical, Mr. Davis’ claim will fail if WW can show that their work was “independently created” – in other words, that WW’s work arose independently of Mr. Davis’ work and therefore was not copied.
WW’s legal representation have also said that Mr’ Davis, having first alleged infringement against WW in 1979, should be prevented from bringing his claim now given the significant period of time it has taken for him to assert his rights in court.
So what can we learn from this case?
Firstly, we advise keeping clear and accurate records of any copyright works you produce which, ideally, verify the author’s name and the date of creation. This is easier than ever before given the ability to store electronically.
Secondly, we advise using copyright notices (for example “© Briffa”) when displaying your works in public. Such notices are not absolutely required in order for you benefit from copyright protection, but can act as a deterrent to potential infringers.
You may also wish to regularly review whether your works are being infringed by others, whether online or otherwise. In the event that you do spot an infringement, we also recommend taking swift action.
If you need to discuss copyright protection and enforcement please don’t hesitate to contact Tom Broster via [email protected]