Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

Subsistence of copyright in the Work was formally challenged in the Defences filed by the Defendants, although the alleged inadequacies in the Particulars of Claim were dealt with in the Claimants’ Reply. Therefore, whilst I need to deal with the issue of subsistence because technically it remains live, I can do so very briefly.

Section 154(1)(a) of the CDPA provides:

“(1)

A work qualifies for copyright protection if the author was at the material time a qualifying person, that is –

a)

a British citizen…”

Section 159(1)(a) of the CDPA provides:

“(1)

Where a country is a party to the Berne Convention or a member of the World Trade Organisation, this Part, so far as it relates to literary, dramatic, musical and artistic works, films and typographical arrangements of published editions—

(a)

applies in relation to a citizen or subject of that country or a person domiciled or resident there as it applies in relation to a person who is a British citizen or is domiciled or resident in the United Kingdom…”

Section 159(1) of the CDPA complies with Article 5 of the Berne Convention for the protection of Literary and Artistic Works 1886 (as amended), to which both the UK and USA are (and were at all material times) signatories.

Ms Martin gave evidence that she is a British citizen and was resident in New York, USA at the time she created the Work. Copyright thus subsists in the Work by virtue of her nationality (section 154(a) of the CDPA), and/or residence (section 159(1) of the CDPA), and at the time of creation was owed by Ms Martin as the author of the work. There was no suggestion that the Work is not original.

The assignment of copyright in the Work from Ms Martin to Found the Found was effected by a document signed by the assignor and the assignee dated 2 June 2021, after Ms Martin first complained to GM Drinks about the First Label, but 12 months before the Claim Form was issued in these proceedings. The assignment includes an assignment of “all … copyright” as well as all causes of action throughout the world. The assignment was not challenged. I note for present purposes that the assignment does not include goodwill in the Work.

Therefore, to answer the first two issues in the List of Issues, there is no doubt in my mind that copyright subsists in the Work under the CDPA and is owned by Found the Found, having been assigned by Ms Martin on 2 June 2021. All copyright was assigned, and none was retained by Ms Martin.

The claim for copyright infringement is brought only by Found the Found, which now owns the copyright in the Work.