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

Doing the best I can, I cannot find exact (or even close) reproductions of any of those 16 visual elements in the Second Label. There are loops, dotted lines, mountains, suns and birds, but not as set out in the 16 examples to which my attention was drawn.

I therefore reject copyright infringement on this basis as well.

In closing submissions, infringement was put on a third slightly different basis – it was said that the designer of the Second Label “has sought to emulate, for example, [Ms Martin’s] use of figures or objects incorporated on top of a line, whereas in place of people, which [Ms Martin] often uses, cactuses have been used on the top right-hand side and in the sort of central element of the … label on the right, you can see that there have been some barrels that have been drawn with some dashes around there and also the section beneath which presumably is meant to represent vineyards. This is still the designer copying Ms Martin’s expression, seeking to use her own style to represent additional elements that represent presumably the wine, so wine barrels etc”. It was also submitted that the llamas shown in the Second Label replicate the stick figure humans in the Work.

Looking again in detail at the Second Label and the Work, I cannot see how an image of a cactus (or a llama), which cannot be found in the Work, is a reproduction of a person as set out in the Work. Nor can I see that a black and white line drawing of a barrel or a vineyard, neither of which appear in the Work, is, on any basis, an infringement of Ms Martin’s copyright.

I therefore also reject this third basis on which copyright infringement was put. The various elements of the Second Label are not inexact imitations of the Work, as counsel for the Claimants submitted: they are black and white line drawings of different objects.

Standing back, I must ask myself, in the words of Proudman J, whether the Second Label “demonstrates the stamp of individuality reflective of the creation of [Ms Martin]. Whether it does so remains a question of fact and degree in each case. It is often a matter of impression whether use has been made of those features of the article which, by reason of the skill and labour employed in its production, constitute it an original copyright work.” In my judgment, Found the Found has not made out its case – I can find no use in the Second Label of features of the Work as alleged. As I have mentioned, there are loops, dotted lines, mountains, suns and birds – but those are all common elements in the language of drawing. Put another way, the loops, dotted lines, mountains, sun and birds are not Ms Martin’s loops, dotted lines, mountains, suns and birds as set out in the Work. Nor are they a substantial reproduction of them, or of the Work.

Counsel for the Claimants accepted that a designer, having reviewed a copyright-protect work, is able to move far enough away from it so that any new work created is not a substantial reproduction – to do so, she said, it must not include the author’s own intellectual creation. Counsel for the Claimants submitted that the Second Label (and the Third Label) still contains enough of Ms Martin’s intellectual creation because those labels do not move far enough away. I disagree. I consider that the Second Label has moved far enough away. Put another way, in my judgment, the Second Label does not include any of Ms Martin’s intellectual creation. Where there are similarities, they are banal aspects of the language of drawing, such as lines, loops, dots, birds and suns – they are not lines, loops, dots, bird or suns as drawn by Ms Martin in the Work, or as are particular to her Work. They are not the expression of her creativity.