England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London W2A 2LL
		25th April 1997

MR JUSTICE LLOYD:

1. This action and the motion before me arise out of arrangements made last week to take photographs intended for the cover of a forthcoming album to be released by the very well-known and popular group, Oasis. This is scheduled to be released later this year and the artwork for the sleeve to the album has been under discussion for some time. These discussions led to a particular idea being favoured and a decision to take the necessary photographs in the grounds of Stocks Country Club Hotel, Hertfordshire, on Wednesday, 16th April. The arrangements commenced the previous day with the draining of the hotel swimming pool and the delivery to the site of a white Rolls Royce which was then lowered by crane into the swimming pool to rest partly on scaffolding at an angle. A number of other objects which were to be or might be used in the photographs were also delivered to the site at that time.
2. On 16th April the five members of the group arrived at the hotel soon after mid-day. Mr Noel Gallagher, who it seems has control of the artwork, supervised the placing of various objects around the pool, which by then had been partly refilled with water, until he was satisfied with the scene including the positioning of the members of the group. Photographs were then taken of the scene by Mr Michael Spencer Jones over a period of time from mid-afternoon to late at night so that the group would have a choice of images in different lights and from different angles and heights. Mr Gallagher exhibits to his affidavit a photograph which, he says, he envisaged as being used for the front sleeve of the album. This has the swimming pool in the foreground with the Rolls Royce seemingly emerging from the water towards the camera. The hotel is beyond and to the right. In the far distance is a wooded area with a partly clouded sky above. The five members of the group are posed round the pool, one on a scooter, one climbing out of the pool and others with or near other objects seemingly unrelated to each other. The various objects were ordered two days before from a warehouse in London; none of them was made for the purpose.
3. The plaintiffs' evidence says that it was regarded as essential to keep the group's plans for the photography secret, in particular as regards the new album, and it is said that only a very limited number or people knew about the arrangements. However, the information was not as narrowly restricted as they would have wanted. On 12th April The Sun newspaper booked two rooms at the hotel for the nights of 15th and 16th April, and on 15th April they commissioned a Mr Seeburg, a freelance photographer, to go to the hotel, stay there and try to take pictures of the shoot. He says in his affidavit that by the time of the shoot another photographer was there, whom he recognised, from The Daily Star, and some local fans who turned up to watch, as well as hotel staff. Some of these people had cameras. He says he remained at the shoot until about 4.30 in the afternoon and took a number of photographs of the scene. One of his photographs shows a version of the scene which is very similar to that of the picture approved by Mr Gallagher, which I have mentioned, but at a different angle, taken, he says, some 15 to 20 feet to the left of the position of the official photographer.
4. This photograph and two others taken by him were published in The Sun on 17th April. His main photograph was again published on 18th April with annotations by way of comment on some of the objects in the picture. That article concluded; "See tomorrow's Bizarre to find out how to get a poster version of the cover". Duly on 19th April the Sun carried a feature headed "Get our Oasis poster", showing a further print of the photograph. This invited readers to send in £1.99 at any time up to 28th April to get "a glossy poster of The Sun's world exclusive of the new Oasis album shoot." The Daily Star and other papers also carried photographs taken on this occasion, but I infer that none of them was of the fully composed scene and nor have they threatened publication in poster form.
5. The plaintiffs are Mr Noel Gallagher, the lead guitarist and deviser of the artwork for the group, Sony Music Entertainment (UK) Limited, who have a recording agreement with the group which grants certain rights in relation to artwork to be used in connection with recordings, and Creation Records Limited, who have a licence agreement with Sony in relation to the group's recordings in the United Kingdom. No point was taken on the title of the plaintiffs to sue. The plaintiffs contend that Mr Seeburg's photograph is an infringement of, or is itself the subject of, copyright vested in them or one of them; or, alternatively that it was obtained in circumstances of confidentiality such that any publication without their consent is a breach of copyright or of confidence. They seek an interlocutory injunction restraining such publication. On an application made ex parte, though on notice, on Monday of this week I granted an injunction until the inter partes hearing of the motion. I now have to decide whether to continue that until trial or further order.
6. News Group Newspapers, the defendant, takes issue not only on the balance of convenience factors but also on whether an arguable cause of action exists, as is asserted by the plaintiffs. It is therefore necessary to examine the basis on which the plaintiffs put their case.
7. It is said, first, that the scene itself (the arrangement or composition of the members of the group, the various objects and the site) is a copyright work. I do not see how that can be so. Mr Merriman argued faintly that it was a dramatic work. Since the scene is inherently static, having no movement, story or action, I cannot accept this. Primarily, he argued that it was an artistic work, as a sculpture or collage within section 4(1)(a) of the Copyright, Designs and Patents Act 1988 or a work of artistic craftsmanship within section 4(1)(c) of that Act.
8. I do not regard this as seriously arguable. I do not see how the process of assembling these disparate objects together with the members of the group can be regarded as having anything in common with sculpture or with artistic craftsmanship. No element in the composition has been carved, modelled or made in any of the other ways in which sculpture is made (see Breville (Europe) Pic v Thorn EMI Domestic Appliances Limited [1995] FSR 77 at 94). Nor does it seem to me to be the subject or result of the exercise of any craftsmanship (see George Hensher Limited v. Restawile Upholstery (Lanes) Ltd. [1976] A.C 64, especially Lord Simon at 91) .
9. I should also mention in this context the case of Shelley Films Limited v. Rex Features Ltd. [1994] E.M.L.R 134. In this case Mr Martin Mann QC, sitting as a deputy judge of this division, held it to be seriously arguable that a film set prepared for the film to be called "Mary Shelley's Frankenstein" was a work of artistic craftsmanship so that an unauthorised photograph taken of an actor on the set was a breach of copyright in the set as well, for different reasons, as of other elements in the photograph. That seems to me quite different on the facts. I can readily accept that a film set does involve craftsmanship. It is not merely an assembly of "objets trouves". I will need to come back to another aspect of that case later.
10. As for collage, a subject of copyright new to English law in the 1988 Act, the traditional understanding of that word is that it involves the use of glue or some other adhesive in the process of making a work of visual art, being derived from the French. Two Oxford Dictionary definitions were put before me. The Oxford English Dictionary, 2nd Edition, 1989 has this:

"An abstract form of art in which photographs, pieces of paper, newspaper cuttings, string etc are placed in juxtaposition and glued to the pictorial surface; such a work of art".

11. It then goes on to quote examples which include some loose uses of the word, for example, in relation to poems and music. The Concise Oxford Dictionary, 9th Edition, has a shorter version of these two definitions, but also as its third:

"A collection of unrelated things".

12. Mr Merriman submits that it is at least seriously arguable that the composition which Mr Gallagher put together as the subject of the photography is within the definition of collage in this sense, even though it did not involve the use of any adhesive. More generally, he submitted that this composition is the result of the exercise of artistic creativity and originality and that at a time when the creativity of visual artists is finding outlets in a great variety of novel forms the 1988 Act should not be construed so as to deny such novel works of art the possibility of copyright protection as artistic works within section 4. He asked forensically how it might be found that copyright subsisted in Carl Andre's bricks, in stone circles created by Richard Long, in Rachel Whiteread's house, in the living sculptures of Gilbert and George and in examples of installation art generally. I do not find it necessary or appropriate to answer that question. I would distinguish Mr Gallagher's composition from all of those examples as being put together solely to be the subject matter of a number of photographs and disassembled as soon as those were taken. This composition was intrinsically ephemeral, or indeed less than ephemeral, in the original sense of that word of living only for one day. This existed for a few hours on the ground. Its continued existence was to be in the form of a photographic image. Accordingly, it seems to me materially different from all the particular examples put to me in this context by Mr Merriman.
13. Even if it were otherwise, I would not accept that it is seriously arguable that this composition is a collage. In my view a collage does indeed involve as an essential element the sticking of two or more things together. It does not suffice to point to the collocation, whether or not with artistic intent, of such random, unrelated and unfixed elements as is seen in the photographs in question.
14. Accordingly, I am not prepared to regard the plaintiffs' case based on copyright in the subject matter of the shoot as sufficiently arguable to be the basis of an interlocutory injunction.
15. Next, Mr Merriman contended that Mr Seeburg's photograph was itself a copy of the official photograph taken by Mr Jones, regardless of the order in which the two were taken. I do not see how that can be argued. If the subject matter is not itself copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other. Of course copyright subsists in the official photograph and if it were the only source of the scene it would be an infringement to copy that, either by a direct copying process or by the scene being recreated and a fresh photograph taken of that recreation. But it is a basic proposition of copyright law that two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are. Nothing in Bauman v. Fussell [1978] R.P.C. 485 is inconsistent with this.
16. As a variant on that contention Mr Merriman submitted that Mr Gallagher was the owner of the copyright in the Seeburg photograph because he was the author, the person who created it (see section 9(1) and section 11(1) of the 1988 Act). The basis of this is that Mr Gallagher created the subject matter and it is therefore said that he created all photographs taken from it. It seems to me that ordinarily the creator of a photograph is the person who takes it. There may be cases where one person sets up the scene to be photographed (the position and angle of the camera and all the necessary settings) and directs a second person to press the shutter release button at a moment chosen by the first, in which case it would be the first, not the second, who creates the photograph. There may also be cases of collaboration between the person behind the camera and one or more others in which the actual photographer has greater input, although no complete control of the creation of the photograph, in which case it may be a work of joint creation and joint authorship (see section 10 (1)) .
17. In the present case, however, it seems to me unarguable that anyone other than Mr Seeburg is the creator of his photograph. Mr Gallagher set up the scene and may well have chosen or approved the angle and other details of all or some of the official photographs taken by Mr Jones, in which case Mr Gallagher is the creator, or one of the creators, of the official photographs. It seems that Mr Jones does not claim to own the copyright in any of these. But Mr Gallagher had nothing to do with the Seeburg photograph except to bring the subject matter into existence and of course to form part of it himself. That does not make him its creator.
18. In my judgment the scene was set up to be photographed and the plaintiffs' only basis for exclusivity depends primarily on whether they were able to prevent others taking photographs. In fact, of course, as we know, one photograph escaped their attempts.
19. Accordingly, in the alternative to his claim based on copyright Mr Merriman submits that there is at least a seriously arguable case, subject to how the facts are found at trial, for saying that Mr Seeburg took his photographs in circumstances in which he must have realised that it was a breach of confidentiality to do so, or at least it would be such a breach to make the photograph available for publication, and that accordingly publication can be restrained by injunction on the grounds of that breach of confidence. To consider this submission I need to go back to some aspects of the evidence. There is a substantial though indirect conflict as to the facts.
20. Emma Greengrass, marketing manager for Creation Records, and Alex McKinlay, an employer of the group's managers, were both present on 16th April for the material part of the day and depose in affidavits to the security arrangements. Mr Gallagher was of course also there but does not deal with this aspect in his affidavit. On the other side Mr Seeburg has sworn an affidavit. He says that, while there were security measures and the shoot area had been cordoned off, no attempt was made to prevent the public getting access to the shoot. While the shoot was being set up people were freely talking to the band and some were taking photographs. He did not see anyone being asked to explain the reason for their presence, nor was he asked himself. As I have mentioned, he says that he took a number of photographs during the shoot from a number of different angles. He says at one point that he took a photograph from a point about six feet from the official photographer. He says that he is sure that it was obvious that he was taking photographs and that some were of the scene itself. He refers to an interruption when a golfer strayed into the background of the shoot since the hotel golf course is at one point close to the site of the shoot and well within view. Apart from that he says his impression was that the group was content to have the public there provided that they did not interfere with the progress or outcome of the shoot itself.
21. In response to references in Mr McKinlay's affidavit, which he refers to but does not say that he has actually read, he says that he did not witness any attempts to prevent photographs being taken by others, nor was any comment addressed to him when he took several photographs of the subject matter of the shoot. He says he took no steps to disguise the fact that he was using his camera.
22. Mr Merriman says that this depiction of a very relaxed atmosphere contrasts oddly with a passage in The Sun's first article in which it said, "We got the shots despite a tight ring of security men and minders". Nevertheless, Mr Garnett for the defendant says that this evidence cannot justify a claim that the subject matter was itself confidential or that Mr Seeburg owed any duty of confidence. No attempt was made to exclude the public from looking at the scene or even photographing it and no conditions were imposed as regards the presence of persons such as Mr Seeburg at the shoot. He was lawfully there as a person staying in the hotel.
23. The plaintiffs do not say that the shooting area was screened off or the public entirely excluded. Screens would indeed have been inconsistent with the intended photographs. An area surrounding the pool by some 20 feet on all sides except the hotel was roped off, but about 15 people not concerned in the shoot did gain access to what was intended to be a prohibited area. They were not asked to leave. Some of them had cameras. The two security staff who were present at or near the restricted area were instructed to ensure that the public only took photographs of members of the group or of themselves with members of the group, not of the set itself. Mr Seeburg was not known to anyone concerned with the shoot and, it is said, was not observed taking photographs of the actual shoot. It is said that he must have evaded the security restrictions imposed and surreptitiously managed to photograph one of the scenes to be shot by the official photographer.
24. Mr McKinlay confirms the instructions to security staff especially as regards the prohibition on photographs of the posed set, especially with the objects in place. He says that one of the two security officers was at all times on patrol round the pool area. He says that if Mr Seeburg had been seen taking a picture of the set he would have been challenged and, if possible, his film would have been confiscated. His comment is that Mr Seeburg must have gone to considerable efforts to go undetected and to evade the security which was in place. He also refers to efforts made to deter or exclude other person who were found in the grounds outside the pool area trying to take photographs.
25. It seems to be common ground that Mr Seeburg gained access as a hotel guest into the roped off area round the pool, which Miss Greengrass said was intended to be a prohibited area and Mr KcKinlay describes as a restricted area. Others not concerned with the shoot did as well, some with cameras. A number of photographs were taken at least during the preparations for the shoot, including one or some which were later published by other newspapers. No attempt was made to exclude this smallish number of people or to prevent them seeing the scene or taking pictures at least before the shoot. On the plaintiffs' evidence, however, once the shoot was ready to begin efforts were made to prevent photography both within the roped off area and outside it.
26. Mr Merriman says on this evidence Mr Seeburg must have been aware of the efforts to prevent people taking photographs of the shoot and can only have succeeded in doing so by being surreptitious and far from being as open as he himself deposes. If so it is a clear inference that he acted in this way because he knew otherwise he would be stopped and that, accordingly, he realised that he was not permitted to take photographs of the scene. He must have known, it is said, that the scene was intended to remain unpublished, albeit not entirely secret, and that it was therefore confidential. By evading the security efforts by luck or guile he nevertheless acted in breach of the confidentiality to which the scene was subject. To echo the words of Mr Justice Megarry, as he then was, in Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41, the circumstances were such, he says, that any reasonable man in the shoes of Mr Seeburg would have realised that on reasonable grounds he was obtaining the information, that is to say the view of the scene, in confidence, at least to the extent that he was obliged by that confidentiality not to photograph the scene.
27. In principle that seems to me to be an arguable case, though it clearly depends on how the facts turn out. Mr Merriman prays in aid Shelley Films v. Rex Features, which I have already cited, where relief was sought on the basis of breach of confidence as well as of copyright. The facts were clearer there. In particular there were signs banning photography, although the anonymous photographer was reported as having said that he did not see them. He was also arguably not lawfully there, unlike Mr Seeburg. But I think it is useful to read a passage from the judgment at page 148-9 in which the judge considered the breach of confidence claim. Referring to the photographer he says:

"However, he was not an invitee and assuming that he saw the signs at the entrance to Shepperton Studios as well as those within the set (I am not convinced that it would be fatal to Shelley's case if he did not - there is in any event an issue that I cannot resolve as to precisely which signs were visible on 18th November 1993), it is impossible for present purposes not to conclude that what he saw and understood from his location might not have fully and sufficiently fixed him with knowledge according to any of the relevant standards that the studio and Shelley considered these signs necessary for some good reason connected with filming and the filming of 'Mrs Shelley's Frankenstein' in particular, which he was not unilaterally at liberty to impart to others.

For present purposes it is necessary only to decide whether there is a serious question whether equity should in all the circumstances of this case impose such an obligation. What then are the relevant circumstances? So far as Shelley is concerned they are, in my judgment, the obvious and stated commercial interest in protecting its substantial investment by, minimally, being able to provide an undisrupted production environment and to control the manner and timing of the release of information about the film which it has endeavoured to achieve by selecting facilities at Shepperton Studios and endeavouring so far as practicable to keep out intruders by reasonable, though not overburdensome entry disciplines and preventing by contractual provisions and restrictions on photographers the dissemination to the public of information unavoidably imparted.

So far as the photographer is concerned there are the circumstances in which he came to be present at Shepperton Studios and to take the photograph within the set - it matters not in my judgment whether he took the photograph from a vantage point within the set or without it yet still within Shepperton Studios - while knowing that photographs within the studio were prohibited, though I am not convinced that the express photography ban is a necessary and essential ingredient. These, coupled with Shelley's assertion that the release of information in this way is deleterious to its commercial interests, are sufficient in my judgment to establish a serious question with respect to the photographer. It is to my mind of minimal significance for present purposes that at least one photograph, namely that in Today, had already been published on 1st October 1993 and that members of the lay public may from time to time have been able to obtain access to view the film set and possibly some shooting. There is no evidence that information that might conceivably be deleterious to Shelley's commercial interests has yet come into the public domain generally or significantly such that its confidential character has already been prejudiced."

28. Then the learned judge went on to consider the separate position of the actual defendant since the photographer had not been identified and material was put before the court as to the separate position of the defendant. That is a question that does not arise before me. At the end of the day, both on breach of confidence and on copyright, the judge granted an interlocutory injunction in that case.
29. Mr Garnett argues that, despite all of that, no arguable case is made out for breach of confidence, or indeed for the existence of confidentiality, and says correctly that merely because a well-known person tries to stop people taking photographs of him or her it does not follow that any picture taken in evasion or defiance of those attempts is in breach of confidentiality. That seems to me to be a perfectly sound proposition but very far from this case. Here, while admittedly Mr Seeburg was lawfully at the hotel and with others was able to gain access to the restricted area and his presence there was tolerated and even the taking of photographs was tolerated before the shoot as such began, the plaintiffs' evidence, if accepted, shows that thereafter a tighter regime of security was imposed as regards preventing photography, the tight ring of security men and minders of which The Sun's first article spoke. It would of course have been clearer if each of the strangers to the shoot who were allowed to stay in the restricted area had been told that they may not take photographs thereafter. But what the plaintiffs' witnesses depose to amounts to much the same as that, although in a more general and less explicit form. I accept also that they were of course allowed to observe the scene and could therefore have gone away and told the world the ingredients of the picture, or even made a sketch of it from memory. But being lawfully there does not mean that they were free to take photographs and it seems to me that to be able to record it as a photographic image is different in kind, not merely in degree, from being able to relate it verbally or even by way of a sketch. That is above all because it was in photographic form that it was intended to be preserved for the group. It is the photographic record of the scene, the result of the shoot in fact, that was to be confidential.
30. I accept it as well arguable that the nature of the operation together with the imposition of security measures as described by the plaintiffs' witnesses made it an occasion of confidentiality at any rate as regards photography. In that context I also accept it as sufficiently arguable that in order to get his picture Mr Seeburg must have conducted himself a good deal less openly than he suggests and indeed surreptitiously, as the plaintiffs suggest. If so, it is an easy inference that he did so because he knew that photography was not permitted and that he was being allowed to remain in the restricted area only on the basis that photographs would not be taken of the actual shoot.
31. On that footing it seems to me that the plaintiffs do have a sufficiently arguable case for saying that the taking of the photograph and its publication is in breach of confidence and that future publication can be restrained by injunction at any rate until the image is fully released into the public domain, presumably on publication of the album, if it does come out with this cover.
32. I must however proceed to consider the balance of convenience factors. The plaintiffs say that damages would not be an adequate remedy for them if they are right but publication is not restrained. Mr Gallagher says that The Sun's sales of such a poster would seriously impair the ability of the group to exploit the image either by way of an authorised Oasis poster or its use with marketing and merchandising at a later stage. Miss Greengrass says that the mystique and interest in the artwork will be substantially and irreparably undermined in an unquantifiable way and that this will adversely affect the campaign for the marketing and launch of the album. I accept that this may well be the case and that the adverse effect would be exceptionally difficult if not impossible to quantify.
33. On the defendant's side The Sun says that it does not intend to make a profit from the poster sales and would offer any excess of proceeds over costs to charity. That suggests that it would not suffer any loss. But it does say that for it to be restrained wrongly would have an unquantifiable adverse effect on its readership and it may suffer a loss in readership, at any rate in the readiness of readers to respond to similar offers by the Sun in future. I accept that there is some force in that, although from seeing the coverage of the story in Tuesday's newspaper I have no doubt that the paper would seek to turn the grant of an injunction to its advantage as best it can. It seems to me that the risk of damage to the defendants in this event is likely to be less than that of damage to the plaintiffs if they are right but no injunction is granted.
34. Of course the picture is in the public domain, having been printed on Thursday, Friday and Saturday of last week in no doubt millions of copies of the newspaper. That is not of itself a reason not to restrain a future publication, in particular an entirely different kind of publication, arising from the poster offer (compare Gilbert v. Star Newspaper Company (1894) 51 T.L.R. 4) .
35. On balance I am satisfied that the right course is to grant an interim injunction until trial or further order, restraining further publication of the picture on the basis not of copyright but of breach of confidence.