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Magazine Adverts design Copyright Infringement

 
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DMP Publishing
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PostPosted: Wed Aug 29, 2012 7:53 pm    Post subject: Magazine Adverts design Copyright Infringement Reply with quote

I currently run a small magazine that is funded by advertisers, I recently recieved artwork from a new customer which I printed, I recieved an email from another magazine stating that they were the creators of the artwork and that it is infringement, my customer however states that they supplied the magazine company with a leaflet design and they cut and chopped it to fit in the required space is this infringment??
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AndyJ
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PostPosted: Wed Aug 29, 2012 9:21 pm    Post subject: Reply with quote

Hi DMP
If your customer can prove they are the authors of the artwork and the other publication used substantially the same artwork, presumably with the permission of the customer, then you are not liable for infringement of whatever appeared in the other magazine.
If the other magazine did the cut and paste job without the express or implied permission of the customer/author of the work, then they may have infringed the customer's copyright by making an unauthorised adaptation. However given that it is generally recognised practice for editors to edit content to fit the available space, I think that for a court to find in favour of the customer, it would be necessary to show that there was some explicit instruction that the layout of the leaflet was not to be altered.
If your publication reproduced the layout which appeared in the other magazine, as opposed to the layout in the leaflet, then that would only infringe the other magazine's copyright (in the typographical layout) if they had obtained permission to make the adaptation of the leaflet; it sounds as if they didn't and so they cannot claim any copyright in their layout as it is a technical infringement, as set out in Section 21 of the Copyright Designs and Patents Act 1988.
Quote:
21 Infringement by making adaptation or act done in relation to adaptation.
(1) The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work.
For this purpose an adaptation is made when it is recorded, in writing or otherwise.
(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work.
For this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.
(3) In this Part “adaptation”—
    (a) in relation to a literary work, other than a computer program or a database, or in relation to a dramatic work, means—
      (i )a translation of the work;
      (ii) a version of a dramatic work in which it is converted into a non-dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work;
      (iii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

    (ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;
    (ac) in relation to a database, means an arrangement or altered version of the database or a translation of it;
    (b) in relation to a musical work, means an arrangement or transcription of the work.

(4) In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code.
(5) No inference shall be drawn from this section as to what does or does not amount to copying a work.

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PostPosted: Wed Aug 29, 2012 9:54 pm    Post subject: Reply with quote

Thanks for the quick response, The customer sent the other publication a eletronic leaflet design which the publication manipulated the design to fit thier publication, However the font on the advert was different to the leaflet they then sent the copy to the customer for aproval and that is what had been sent to me to be used in my publication, also in the other publication it has No reference to copyright
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AndyJ
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PostPosted: Wed Aug 29, 2012 11:54 pm    Post subject: Reply with quote

I think a bit of pragmatic discussion and the application of common sense between the three parties is required. Clearly the customer produced the main creative input in the form of the leaflet, which I assume contains text and graphics; the other magazine has added some tweaks but very little, I suggest, which qualifies as original creativity. And you have used this version in good faith having been authorised so to do by the customer. In most cases editorial intervention is not normally seen as being sufficient to attract copyright.
In breaking this down, the other magazine really has to first resolve the matter of the customer authorising you to use re-designed layout. In purely legal terms that seems to me to be the starting point.
This is where it begins to get technical. Let's look at two scenarios:
    a. If the copy of the artwork which was sent to you was the actual artwork that the other magazine sent to the customer, that artwork cannot be termed an infringing copy, for the simple reason that it was made by the other magazine, who, let us assume, have a claim to copyright in their artwork. The problem arises when the customer then passed it to you in circumstances which appear to authorise you to use the artwork, but in fact the customer does not have the right to authorise you to use it, as here I'm assuming it was sent to them as a proof copy for approval. The act of infringement thus occurs when you publish this legitimate artwork without authority. This would make you and the customer jointly liable for infringement.
    b. Alternatively if the customer made a copy of the artwork, and sent the copy to you while retaining the original from the other magazine, then you were passed an infringing copy, and your subsequent actions would be seen as secondary infringement, but only if it could be shown that you knew or could be reasonably expected to know that the artwork was an infringing copy. Since that does not seem to be the case, you would not be liable, but the customer would.

Set against both these scenarios is the fact that the customer undoubtedly owns the copyright in the leaflet on which the re-worked layout was based, and it becomes clear that he has a strong moral case for a claim to be able to use the new artwork under an implicit licence.
As you can see this is all very messy and so trivial that it does not warrant any legal action or threats of legal action. It seems to me that both you and the customer have acted in good faith, and that any infringement which may have occurred was entirely unintentional, and I suspect, without any real economic detriment to the other magazine. I hope that common sense will prevail.
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