Copyright - Lant v Bray

Conrad Lant

Author Jonas Rogowski Licence CC BY-SA 3.0 Source Wikimedia

 

Jane Lambert

Intellectual Property Enterprise Court (Recorder Amanda Michaels) Lant v Plastic Head Music Distribution Ltd and another [2025] EWHC 1954 (IPEC) (31 July 2025)

Between 1979 and 1986, Conrad Lant and Anthony Bray were members of a band called "Venom".  Each of them had licensed the sale of merchandise reproducing logos and other artwork from that time without the other's consent.  Mr Lant brought proceedings against Mr Bray and his licensee, Plastic Head Music Distribution Limited, for infringement of any copyright that might have subsisted in those works.  Mr Bray and Plastic Head said that Mr Bray was entitled to copyright in some of those works and denied that copyright subsisted in others.  Mr Bray brought infringement proceedings against Mr Lant and his licensee, Razamataz.com Ltd., by way of counterclaim.  The action and counterclaim were tried by Recorder Michaels on 16 and 17 June 2025.  She handed down her judgment on 31 July 2025 (see Lant v Plastic Head Music Distribution Ltd and Another [2025] EWHC 1954).

The recorder's difficulty in trying this case was that the works had been created a long time ago, when the parties to the dispute were very young. It was unlikely that any of the band members gave much thought to the subsistence or ownership of copyright in those works at the time.  Their focus would have been on the success of the band.   The learned recorder recalled the following passages from the judgment of Pat Treacy in Alan Williams Entertainments Ltd v Clarke [2022] EWHC 1798 (IPEC); [2022] E.T.M.R in which similar problems had arisen:

“[40] My starting point is the Judgment of Leggatt J (as he then was) in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) (‘Credit Suisse’), from [19] .… the best approach in the trial of a commercial case is to base factual findings on inferences drawn from the documentary evidence and known or probable facts. The value of oral testimony is ideally 'to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness.'
[41] In a case such as this, where almost all the witnesses are personally involved … Leggatt J’s observations in Credit Suisse on the fallibilities of human memory and the distorting effect of the litigation process are particularly important:

'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.

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.' [19] and [20]

[42] …
[43] The difficulties of assessing the witness evidence are compounded by the uneven documentary record. … The Defendants’ case, in particular, relies principally on oral evidence with a lack of contemporaneous supporting documentation. As a result, while some factual findings can be made by reference to the contemporaneous documents, it has been necessary to assess the reliability of the witness evidence also by reference to other considerations.
[44] The relatively recent Judgment of HHJ Richard Williams, sitting in the Business and Property Courts in Birmingham, in Singh v Jhutti [2021] EWHC 2272 (Ch) contains a summary of relevant considerations when assessing evidence of events which took place over an extended period of time, in respect of at least some of which there is limited or disputed documentary evidence, and where the oral evidence is largely given by witnesses closely related to the dispute. Many of the difficulties in Singh v Jhutti also arose in this case. For example, as mentioned above, the oral evidence was, … given by witnesses closely connected to the dispute and therefore likely to be subject to, in the words of HHJ Williams '… significant motivating forces and powerful biases…' [59b].
[45] Facing a similar situation, HHJ Williams referred to the Judgment of Lewison J (as he then was) in Painter v Hutchison [2007] EWHC 758 (Ch) at [3] setting out a non-exhaustive list of indicators of unsatisfactory witness evidence that can assist in assessing oral testimony. These were summarised by HHJ Williams as:
…
(v) self-contradiction;
(vi) internal inconsistency;
(vii) shifting case;
(viii) new evidence; …
[46] I have borne all of those indicators in mind when listening to the oral testimony and subsequently reviewing my note of cross-examination. I have also reminded myself that, as highlighted in Credit Suisse, a witness may have a conviction as to the truth of a particular fact, which is found to be incorrect or probably incorrect when other evidence is examined. A witness whose evidence is found to have been unreliable or not convincing on one issue is not necessarily to be regarded as unreliable on other issues. There may, however, be some issues where the only conclusion that can be drawn is that the witness is consistently unreliable or even deliberately untruthful. Such instances will inevitably taint the Court’s perception as to the overall reliability of that witness.”

The learned recorder considered whether copyright subsisted in any of the following works and, if so, who owned such copyright.

Venom Logo 1

This was the first logo used by the band. It appeared on their first album, Welcome to Hell, in 1981. There was no dispute that copyright subsisted in that logo, but both Mr Lant and Mr Bray claimed ownership of it. Mr Lant said that soon after he had joined the band, he began to work on creating some artwork. He said that he had designed Venom Logo 1 in late 1979 or early 1980, based on some stylized drawings he had made for a logo for a band in which he had played before joining Venom. Mr Bray said that he had designed Venom Logo 1 in early 1979 before Mr Lant joined the band.  He said that he had painted the logo onto canvas for use as a drum riser.  A drum riser is a length of cloth that is used to cover the supports for a platform on which the drummer sits during a performance.  Mr Bray’s evidence was supported by Jeffrey Dunn and Mr Bray's friend, Stephen Ash.  Both agreed that the band had been called Venom before Mr Lant had joined it, and that the Venom Logo 1 drum riser had been in use before Mr Lant joined the band.   As Mr Bray was supported by Mr Dunn and Mr Ash, the recorder preferred Mr Bray's evidence to Mr Lant's.  She held that copyright subsisted in the logo and that Mr Bray was entitled to such copyright.

Venom Logo 2

Mr Lant claimed to have designed that logo in 1980 or 1981.  Mr Bray did not claim to have designed that logo, but believed that it had been created by Mr Lant in collaboration with an employee of the band's record company called Magda.  Mr Bray alleged in his first witness statement that Magda had created the layout for the album cover, but later conceded that Mr Lant had created the artwork.  However, he then argued that Venom Logo 2 lacked originality because ot was simply a derivative work of Venom Logo 1. He accepted that if copyright subsisted in the work, it belonged to Mr Lant.

The learned recorder referred to the following passages of Mrs Justice Joanna Smith's judgment in Lidl Great Britain Ltd v Tesco Stores Ltd [2023] EWHC 873 (Ch):

“[282] Copyright only protects works which are original in the sense that they are the author’s own creation. The test for originality was considered by the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening (C-5/08) EU: C:2009:465; [2010] FSR 20 at [39]. A work, and its various parts, will be considered original 'provided that they contain elements which are the expression of the intellectual creation of the author of the work'. This EU test of originality was further elaborated upon in Cofemel - Sociedade de Vestuario SA v G-Star Raw CV (C-683/17) EU: C:2019:721; [2020] ECDR 9 at [29]-[31]:

'[29] The concept of “work”…[f]irst…entails that there exists an original subject matter, in the sense of being the author’s own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation…
[30] As regards the first of those conditions…if a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices…
[31] On the other hand, when the realisation of the subject matter has been dictated by technical considerations, rules or other constraints, which have left no room for creative freedom, that subject matter cannot be regarded as possessing the originality required for it to constitute a work…'

[283] The court went on at [35] to observe that, where subject matter has the characteristics identified in [30], and therefore constitutes a work, 'it must, as such, qualify for copyright protection…and it must be added that the extent of that protection does not depend on the degree of creative freedom exercised by its author, and that that protection is therefore not inferior to that to which any work falling within the scope of that directive is entitled'. In other words, the question of protection is a matter of fact and not degree.

...........

[288] In my judgment, the act of bringing together the Lidl text with the yellow circle and the blue background was an act which involved skill and labour - the combination of colours and shapes and the orientation of the various elements. Tesco’s real complaint, as I pointed out in opening, appears to be that the combination consists of insufficient skill and labour because it is too simple. However, as to that, my second reason for rejecting Tesco’s argument is that simplicity of design and/or a low level of artistic quality does not preclude originality …
…
[290] … Ultimately, the litmus test must be whether the [work] involves the exercise of intellectual creation involving the expression of free choice. In my judgment, it does.”

The recorder noted that Mrs Justice Joanna Smith's summary had been approved by the Court of Appeal in Lidl Great Britain Ltd & Another v Tesco Stores Ltd & Another (Rev1)  [2024] EWCA Civ 262, [2024] FSR 17 at [198]-[191].  Lord Justice Arnold had said at [191]:

“The degree of creativity involved in the creation of the [work] may have been low, but it was not a purely mechanical exercise, nor was the result dictated by technical considerations, rules or other constraints which left no room for creative freedom.”

Recorder Michaels noticed several differences between Venom Logo 1 and Venom Logo 2. In her view, it was abundantly clear that a sufficient degree of creativity had been involved in the creation of Venom Logo 2. It had original features, especially in the amendments to the shape of the V, the N and the M, which she considered to be striking and distinctive and added substantially to the overall design. Her view of the amount of work that went into the logo was supported by some sketches produced by Mr Lant, which showed a variety of different forms of the logo, suggesting a wide degree of artistic freedom. There was additional evidence of the use of variations of the logo. In the circumstances, she had no hesitation in finding that the creation of Venom Logo 2 would not have been a purely mechanical exercise.  The result was not dictated by technical considerations, rules or other constraints, which left no room for creative freedom.   In the circumstances, the recorder found that copyright subsisted in the Venom Logo 2.   In light of the defendants’ sensible concessions, she found that Mr Lant was the owner of that copyright.

Goat Head Lucifer

As for the third work in issue, “Goat Head Lucifer,” Mr Lant said that he decided to draw a demonic face of Lucifer at about the same time he was working on the design of the sleeve for the album "Black Metal". Mr Bray accepted that Mr Lant had produced it but said that it did not have sufficient originality to be protected as a copyright work in that it was based closely upon a painting by Austin Osman Spare. Mr Lant said that he might have been inspired by Spare's work, but he had done a good deal of work to create his own image.  He said that he intended to show the face of Satan. He gave evidence of how he had worked on the image by sketching himself pulling faces in a mirror.  Again, the recorder had no hesitation in finding that the creation of Goat’s Head Lucifer would not have been a purely mechanical exercise.  Nor was the result dictated by technical considerations, rules or other constraints that left no room for creative freedom. She found that copyright subsisted in the work. As the defendants had accepted that any copyright subsisting in the work would belong to Mr Lant, she held that he was the owner of such copyright.

Sigil of Baphomet

Mr Lant said that he had designed the Sigil of Baphomet in late 1979. He admitted that he had adapted an 1897 design by the occultist Stanislas de Guaita. He said that it had been used initially on a large drape used onstage by the band.  It had also appeared on the sleeve of the album "Welcome to Hell" and the single "In League with Satan" in 1981. The defendants agreed that the work was an adaptation of the Guaita design but said that it had been Mr Bray who had produced it before Mr Lant joined the band.  

Mr Lant accepted that a version of the sigil had been used before he joined Venom, but he did not know any of its details or who had designed it.  He said that he had made his own version soon after joining the band and produced some sketches that he claimed to have made at the time.  Mr Bray suggested that he might have created those drawings, but he had not mentioned that possibility earlier.  Also, the drawings misspelt his stage name.  The recorder found that Mr Lant was more likely to have designed the sigil than Mr Bray and held that Mr Lant was the owner of the copyright in the work.

Legions Logo

Both Mr Lant and Mr Bray claimed to have designed a Legions Logo. However, Mr Bray's version of the logo differed from Mr Lant's. Mr Bray admitted that Mr Lant was the author of the above design. Even though Recorder Michaels described Mr Lant's evidence as unsatisfactory, she found that copyright subsisted in the work and held that it belonged to Mr Lant.

At War with Satan

This was part of the cover for the band's third album, "At War With Satan".   Again, both Mr Land and Mr Bray claimed to have designed it.  Neither gave a detailed explanation of how or when the work in issue, as opposed to the album cover as a whole, was designed.  The recorder ruled that neither party had made out an ownership claim.   She dismissed both the claim and counterclaim.

The Bloodlust Photograph

This photograph dates from 1982 and had been used on the cover of the single "Bloodlust".   The faces were of Mr Lant, Mr Bray and Mr Dunn.  Mr Bray claimed the copyright in the photo initially on the ground that he had taken it, but later, on the ground that he had commissioned it.   Mr Lant had licensed Razamataz.com to reproduce the work on merchandise without Mr Bray's permission.  Mr Bray complained that Mr Lant had infringed his copyright in the photograph. His complaint formed part of Mr Bray's counterclaim against Mr Lant. 

Mr Lant's defence to the counterclaim was that the photographs had been commissioned by Neat Records.  He had acquired the negatives, and he claimed the copyright in the photograph, though he neither pleaded nor produced evidence of an assignment from the record company.

The recorder found Mr Bray's evidence unreliable and Mr Lant's plausible.  She found that Mr Bray had not proved ownership of the copyright.

The "Possessed" Photograph

The children in the picture were said to be Mr Bray's son and a photographer's daughter.   Again, Mr Bray had claimed to have taken the photograph but then said that he had commissioned it.   In a later witness statement, he said that the copyright had passed to a management company called Beardawn Ltd, but did not explain how it had passed to him.    Mr Lant had licensed its reproduction on merchandise, and Mr Bray objected.  He alleged that Mr Lant had infringed his copyright, and this allegation also formed part of Mr Bray's counterclaim.  Mr Lant's defence was that the photo was commissioned by Neat Records.   Once again, the learned recorder found Mr Bray's evidence to be unreliable and Mr Lant's plausible.  She dismissed Mr Bray's counterclaim in the "Possessed" photograph. 

Infringement

Having upheld Mr Lant’s copyright in the Venom Logo 2, Goat Head Lucifer,  Sigil of Baphomet and Legions Logo Recorder Michaels held that any reproduction of those works would have amounted to an infringement.   No particulars of such infringement had been provided to her.  She also held that any unauthorized reproduction of Venom Logo 1 (but not Venom Logo 2) by Mr Lant or Razamataz.com would have infringed Mr Bray's copyright in that work, but again, she had no details.  

After referring to paras [140] to [147] of David Stone's judgment in Original Beauty Technology Company and Others v G4K Fashion Limited and Others [2021] EWHC 3439 (Ch), [2022] FSR 11 she observed that neither party had dealt with the pleaded issuee of flagrancy either in their skeleton arguments or oral submissions.   She found that none of the infringements had been flagrant and that an award of flagrancy damages would have been neither "effective, proportionate or dissuasive."

Comment

There are two main takeaways from this case.   The first was Pat Treacy's guidance from Alan Williams Entertainments Ltd v Clarke in cases where there is scanty documentary evidence and the events in question took place a long time ago, which Recorder Michaels adopted and applied.  The second is the recorder's analysis and application of the case law on originality when determining whether copyright subsisted in the Venom Logo 2.

Anyone wishing to discuss any of the issues in this case is welcome to call me on +44 (0)20 7404 5252 during UK office hours or to send me a message through my contact page at any time.