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

The Second Label is said to be a redesign of the First Label, and therefore also a copy of the Work. Looking at the Second Label, that appears to me to be the case. The question therefore arises as to whether the Second Label has moved far enough away – in the words of the editors of Laddie, Prescott & Vittoria, “it is then necessary to decide on which side of the line the case falls. This line separates that degree of resemblance which is too general to count from that which is too close to be allowed”.

I was not provided with a side-by-side comparison of the Second Label with the excerpt from the Work which was said to have been copied, but doing the best I can, the below images create the relevant comparison:

I have left the Claimants’ highlighting in the Segment of the Work to demonstrate that none of the features which I have found were copied in the First Label appears in the Second Label. I have also compared the Second Label with the whole Work, not just the segment excerpted above.

The Second Label was also designed by Mr Milia. I am satisfied that it was an attempt by Mr Milia to move away from the Work (and the First Label) to endeavour to avoid infringement (I return to this issue below). It was thus a copy of the First Label (for copyright purposes), and therefore also a copy of the Work. The question, as put by counsel for the Claimants in their opening written submissions was as follows: “[t]he issue with the Second Label (and Third) is whether sufficient disguise has been donned in order to actually prevent a substantial part of the Work from being taken so as to avoid infringement.”

Counsel for the Claimants suggested that a “straightforward” way to avoid infringement was to use an entirely different label. Whilst this is undoubtedly true, it is not the test I need to apply, so I need say no more about it.

The Claimants recognise that the Second Label falls within the third category identified by the editors of Laddie, Prescott & Vittoria – that is, inexact imitation. Counsel for the Claimants set out in their opening written submissions an eight-point feature analysis of what were said to be Ms Martin’s exercise of her expressive and creative choices:

The taking of these elements in the Second Label (and the Third Label) was said to constitute a substantial reproduction of the Work. It was submitted to me, in terms, that “the entirety of the [Second L]abel is in one form or another a copy of the Work”.

I did not find this feature analysis helpful for the purposes of assessing “substantial part”. First, feature i) is circular, defining the Work by reference to Ms Martin’s graphic linear style. Second, I do not consider that the analysis adequately sets out the features of the Work. This was not how third parties described Ms Martin’s work, for example. (I am conscious that what matters is the Work, not Ms Martin’s work more generally, but there are no descriptions of the Work in the evidence, and Ms Martin’s work is, on the Claimants’ case, consistent). Mr Duff, who gave evidence for the Claimants, described Ms Martin’s work as follows – “[t]he faces, figures and features such as the way she does the black line – a map-like look with whimsical lines coming off it with a distinctive and pronounced thickness, makes her work instantly easily recognisable”. The publisher of Ms Martin’s monograph described her work thus: “[h]er work is a meditation of lines – a language of characters, lines, and messages that invites her viewers to share in her creative process”. Ms Martin’s lawyers (presumably on instructions) described her “distinctive black and white doodle style and include [sic] patch-worked faces”. I recognise those descriptions of Ms Martin’s work and the Work – I do not recognise the feature analysis. I consider Ms Martin’s lawyers’ description of “patch-work” to be accurate – Ms Martin’s work has that appearance as does the Work. I also consider that the faces feature prominently in the Work, and in Ms Martin’s work more generally – they are an essential element of nearly every example provided in the evidence. Third, counsel for the Claimants was equivocal when pressed as to whether, to be a “substantial reproduction”, the Second Label needed to include all 8 elements (as one would expect from the use of the conjunctive “and” between elements vii) and viii)) or whether only some of them were necessary to constitute a substantial part. Counsel for the Claimants invited me to come up with my own feature analysis should I feel that the listed 8 elements were not made out. I do not consider that a useful way to proceed. Fourth, I do not consider that the Second Label reproduces all of the 8 elements (for example, it is readily obvious to me that the Second Label has perspective, contrary to element viii) relied on by the Claimants).

Rather, perhaps to state the obvious, in a question of copyright infringement of an artistic work (in this case, a wall-drawing), it is what it looks like that matters. Comparing the two works side-by-side is key. It may help to observe that both the artistic work and the allegedly infringing copy include birds, but that will not matter unless some element of the expression of the birds in the artistic work has been taken. Otherwise, the analysis falls foul of the principle that no copyright subsists in a general idea. Overly-lawyered feature analyses will not assist the Court, which is able to make the side-by-side comparison, particularly where the feature analysis does not appropriately represent what the work in issue actually looks like.

Further, the Second Label does not include two of the prominent visual features that make Ms Martin’s Work original. First, the Second Label clearly has perspective. Second, it includes no humanoid faces. To me, having reviewed the Work and reviewed all the evidence before me of Ms Martin’s other work (relevant to passing off, not to copyright infringement), including the various comments made by third parties in relation to Ms Martin’s work, it is a particular element of Ms Martin’s style that she mixes humanoid faces with geographic elements, devoid of perspective. This is done (largely) using black lines on a white background. It is, perhaps, easier to give some examples from the evidence, including to demonstrate how pervasive the humanoid faces are in her work: