28 March 2006

Copyright: Lott v JBW & Friends Pty Ltd. and Another

The decision of Mr Justice Mulligan of the Supreme Court of South in Lott v JBW and Friends [2000] SASC 3 is a case that really ought to be better known. It covers three important issues:
(1) the subsistence of artistic copyright in computer generated graphics - whether it is an artistic work at all and if so whether it is original;
(2) the liability of directors of small closely held companies for the torts of those companies; and
(3) additional damages for copyright infringement.
On directors' liability, it is interesting to compare Lott with the decision of the Court of Appeal in MCA Records Inc and another v Charly Records Ltd and others [2001] EWCA Civ 1441 (5 Oct 2001). The Australian test could usefully be applied here. Perhaps not so the law of additional damages. S.115 (4) of the Australian Copyright Act 1968 appears to specify the conditions for the award of such damages. By contrast, s.97 (2) of our Act requires the court to have regard for "all the circumstances" of the case. Although the Australian test is in some ways more rigid and more rigorous I am not convinced that an English court would have awarded additional damages in the circumstances in which they were awarded in Lott.

I first wrote a case note on Lott in 2002 and have revised it several times. I have now transposed it to the IP/it Update website.

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