The classic kiwi summer. The classic kiwi bach. Classic copyright infringement ... or not? For an IP lawyer Christmas delivered up an interesting copyright infringement claim. An Auckland artist, Glenn Jones, created the image shown entitled "At the Bach" according to the article two years ago. This Christmas his attention was drawn to a Contact Energy advertisement featuring a a similar, but not idential,  bach image and he posted it on his Facebook page for comment. A few days later, another bach design, this time being used by Wattie's,  was brought to his attention. Suggestions of copying inevitably followed.

The Contact and Wattie's images (shown in the article below) are similar but not identical. The Wattie's bach has a number of differences but it was clear that there we quite lot of simialrities between Jones's image and the Contact one. Despite a Google image search throwing up other similar bach drawings and photographs, both advertising agencies involved with the campaigns, having had the images drawn to their attention, vowed to make changes. The agency for Contact comments that "there are similarities - unfortunately due to human error, on occasion whether consciously or unconsciously such similarities occur. "

The comment on unconciously is an interesting one. Establishing copyright infringement involves (1) a reproduction of the whole or substantial part of a work; (2) an objective similarity between the two works ; and (3) a causal connection between the original work and the alleged copy. Assuming (1) and (2) are met evidence of causal connection is often hard to establish. However as there is no need to show an intention to copy a copyright work the law recognises that unconcious copying is possible, although hard to prove. For instance, a designer may see an image, afterall we are bombarded by them virtually every minute, and their mind can store that image as memorable without them even realising it. Subsequently, when creating their "own" image that subconscious image comes to the fore and "influences" the work being created. 

Every case will depend on its facts but sometimes if an image is simply far to close to be explained, subconcious copying is a possiblilty, albeit innocently. Cases of subconscious copying will be rare but IP lawyers and those creating works need to be alive to the possibilty. Here the design agency made changes immediately so Mr Jones is not going to make interesting summer reading by way of a court judgment so we will need to settle for a trashy novel , New York Times bestseller or a summer bumper crossword instead!