August 2003

Artists, Record Labels

Football Association Premier League Ltd and others -v- Panini UK Ltd
The Court of Appeal has held that the badges and crests of individual English football clubs were the artistic works of the clubs and were entitled to copyright protection. The unlicensed inclusion of these badges, crests and emblems on the stickers of Panini’s Football 2003 Sticker Collection was not an ‘incidental inclusion’ in an artistic work within the meaning of section 3(1) of the Copyright Designs and Patents Act 1988 and therefore an injunction was granted to restrain the defendant distributing those stickers and albums. Lord Justice Chadwick held that where an artistic work in which copyright subsisted appeared in a photograph – because it was part of the setting in which the photographer found his subject, then it could be properly said to be an integral part of the photograph. But to qualify as an exception to infringement, the inclusion of the work must be incidental and on the facts of the case, clearly the inclusion of the badges, crests and emblems was not incidental as it was the basic object of the defendant’s production of stickers and albums.

Source: The Times, Law Report, 17 July 2003

COMMENT : By way of analogy, a band’s logo (if not registered as a Trade Mark) will also be protected as an artistic copyright if it is a qualifying original work. If a photographer took a photo of fans wearing T-shirts featuring the logo, or a stage set featuring the logo, and this was laterly published in a magazine or a newspaper – then this would almost certainly amount to ‘incidental inclusion’ and so would not infringe the band’s copyright. But deliberately reproducing the band’s logo in, say, a book or photo-album about the band might well be an infringement of copyright. This decision, alongside the Court of Appeal’s decision in Reed -v- Arsenal Football Club (2003), now gives substantial protection to ‘badges of allegiance’ and logos both under copyright law and, where applicable, trade mark law.

Note that Scottish Law now parallels English law after the Court of Session granted Celtic FC’s application for an order to stop a shop from selling or advertising goods bearing the word ‘Celtic’, other than those placed on the market with the Club’s consent. The Court also ordered that the memorabilia at the centre of the dispute should be delivered to the court pending any final decision in the case. The Court of Session heard that Celtic Football Club turned over £10m in merchandising in the year up to June 2002 and has 55 UK and 7 European Community Trade Marks. 

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