A recent High Court decision has underlined the need for caution when agencies use third party material which may be subject to copyright protection.
Antiquesportfolio.com plc engaged Rodney Fitch to carry out design and branding consultancy work for its antiques web site. Antiquesportfolio.com claims that some of the material produced by the design company was based on photographs of antiques in “Miller’s Antique Encyclopaedia” published by Reed Consumer Books. It claims that this infringed copyright and that Rodney Fitch was therefore in breach of contract.
There was no explicit term in the contract covering third party claims and Rodney Fitch argued that the only term which could be implied was that Antiquesportolio.com would have “undisturbed use” of the work supplied. In other words, Rodney Fitch would only be in breach if the copyright owner actually sued Antiquesportfolio.com.
Mr Justice Neuberger dismissed this argument. It would force the client to choose between using infringing material and risking being sued by the copyright owner, or rejecting the work for which it had paid – with no recourse against the design company.
The design company was under an implied obligation to carry out its work with reasonable skill and care. This included a duty to use reasonable care not to include material knowingly copied from a third party. Alternatively, the design company may have breached an implied obligation to deliver work which was fit for the purpose for which it was commissioned.
Similar principles will apply to advertising agencies if there are no explicit terms in the client contract.
Rodney Fitch also argued that the photographs in question were not protected by copyright anyway. But the judge decided that even simple photographs of static items, such as a jug or a sofa, were capable of copyright protection. Photographs have to be “original” to attract copyright protection, but the requirement of originality in UK law is very low.