Copyright:Davies v Wolverhampton Wanderers Football Club
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Jane Lambert
Chancery Division (Mr Justice Nugee) Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) (15 May 2019)
This was a claim for infringement of copyright. The football club, Wolverhampton Wanderers, known as Wolves, has a stylized wolf's head as a logo. It can be seen at the centre of the menu bar of the club's website and in lots of photos. The club has used that logo on players' shirts, signage, programmes, business stationery and so on ever since 1979. In the early 1960s when the claimant was at secondary school he drew stylized animal heads including that of a wolf which bore a considerable resemblance to the club's logo. In this action, he claimed that copyright subsists in his drawings as original artistic works and that Wolves had infringed his copyright by copying one of his drawings when it designed its logo.
Copyright confers the exclusive right to do certain acts in respect of a work in which copyright subsists. One of those acts is copying the work. Copying is more than simply making a similar work. As Lord Justice Mummery explained in Sawkins v Hyperion Records Limited [2005] WLR 3281, [2005] 1 WLR 3281, [2005] EWCA Civ 565, [2005] 3 All ER 636
"The important point is that copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not prevent use of the information, thoughts or emotions expressed in the copyright work. It does not prevent another person from coincidentally creating a similar work by his own independent efforts. It is not an intellectual property monopoly in the same sense as a patent or a registered design. There is no infringement of copyright in the absence of a direct or indirect causal link between the copyright work and the alleged copy."
The claimant's first task was to show a causal link between his schoolboy drawings in the early 1960s and the creation of the logo in 1979. He was unable to do that but he would not necessarily have won even if he had established such a link. Objective similarity between the artistic work and putative copy raises a presumption of copying which can be rebutted by evidence to the contrary. In this case, the club had the strongest possible rebuttal evidence, namely the testimony of the designer of the logo. According to the trial judge. the designer "gave his evidence in a straightforward and confident, indeed forceful manner" which "was entirely unshaken in cross-examination." His evidence was that he had designed the 1979 logo himself, that he was not provided with any specific design ideas or given any sketches or other materials by anyone else, that he had not copied and would not ever copy anyone else's work, and that he had never seen any of the claimant's designs. The judge found his evidence to be completely credible.
The claimant's case was that had entered his wolf's head design in a children's art contest in Wolverhampton between 1961 and 1963, that someone had been sufficiently impressed by the design to keep it until 1979, that that person had passed that design to the club chairman, that the chairman had passed it on to the designer and that the designer had copied the drawing when he designed the logo. There were lots of flaws in that case. The artwork that the claimant had entered into the competition could not be found and may not have survived. All that he could show were similar drawings of animal heads including a wolf's head that he had drawn at about the time of the competition. The claimant could not say with certainty which competition he had entered. He could not prove a chain of events between entering the competition and the design of the logo. He could only suggest possibilities none of which the trial judge considered to be likely.
Perhaps the biggest problem for the claimant was that the judge could not rely on his evidence. His lordship made clear that he did not suppose the claimant to be lying. The claimant was convinced that Wolves had copied his design. Nevertheless, there were a number of reasons why he questioned it. The first was the passage of time. The claimant was giving evidence of events that had happened more than 50 years ago. The second was that there were discrepancies in his story. In their letter before claim, his solicitors alleged that his wolf's head had been constructed in accordance with Pascal's Hexagrammum Mysticum theorem but the claimant showed that he had no real understanding of the theorem when he was questioned about it in cross-examination. Finally, several recordings of the same telephone conversation that he had made to the chairman of Wolves some years earlier revealed slight differences which suggested that the recordings had been edited.
As to the first reason, the judge referred to Mr Justice Legatt's comments in Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm) but did not quote them. It is perhaps worth doing so here:
[17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
[19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
[21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
[22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."
The defendant's lawyers, in this case, appear to have been well aware of Mr Justice Leggatt's dicta. It would be a good idea for those acting for a prospective claimant also to bear that passage in mind. Perhaps they should test his or her story when the client first comes to them at least as rigorously as the other side would do should that client enter the witness box. That is never easy and it may result in the client going elsewhere but that is surely better than giving the client false hope or the client's facing an eyewatering bill after a detailed assessment. Should anyone wish to discuss this case or copyright generally, he or she should call me on 020 7404 5252 during office hours or send me a message through my contact form.
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