Should designers buck up their ideas?

There are many cases where infringement of intellectual property is done with no intent or malice.  In particular people in the creative fields can fall foul of someone else’s copyright where the wrong is not deliberate plagiarism but has come about because of human frailties, subliminal collection of information an unconscious cues.  Designers can also fall foul of intellectual property rights through homage or parody.  It sometimes falls to the courts to sort through the resultant mess using the legal framework to ascribe right and wrong to the parties’ actions and motivations.  Sometimes it’s easier than others.

The two logos below were the creative works in question in the case of ATB Sales v Rich Energy Limited [2019] EWHC 1207 (IPEC).  Whether you are an expert or a layman the logos bear a striking similarity to each other as a stag’s head device.  Straight way the defendants in the case are on the back foot or hind legs if we choose to throw in some terrible puns (oh deer). Substantial similarity together with access to the work has the effect of reversing the burden of proof in respect of the copyright claims so instead of ATB having to prove copying by Rich Energy, the defendants had to prove they did not copy the original graphic work that was ATB’s logo.  

In this day and age with the all-pervading presence of the internet the proof of access to the original work is not a substantial hurdle for the claimant to leap.  At this point, for Rich Energy they would need to convince the court that there was no conscious copying.  Success at that point still leads to the spectre of subconscious copying.  As observed by the judge in the case of Mitchell v BBC no evidence [from witnesses] can ever rule out a subconscious influence when considering the slippery nature of the allegation of subconscious copying when it is combined with the reality of the internet today.  That leaves the judge to make an objective assessment of all of the evidence from witnesses or revealed by documents.  That assessment can be considered by reference to factors such as how familiar the defendants were with the claimant’s original work, the character of the work and objective similarity.  Do two genuinely original works have similar antecedent influences or is one work a direct close copy of the other?

In the ATB case the consideration of subconscious copying did not come into play, the judge was sufficiently unimpressed with the witnesses for the defendants and the lack of any real material to show a contemporaneous design journey to reach the stag logo that she found conscious copying had occurred.
    
The takeaway from this for creatives everywhere is to document fully your journey at all stages from inspiration to final execution ensuring preservation of metadata and creating verifiable date marked copies of non-digital works.  This won’t prevent a claim of intellectual property infringement down the line but it will allow an effective defence of the defensible. Just don’t re-invent Buzz Lightyear with a mood board of a cosmonaut and Captain Kirk.