Case Number

CA 360/83

Date Decided

9-8-1985

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The Respondents, ice cream manufacturers, ordered signs from the Appellants, graphic artists, for commercial use in their business. The Respondents requested that the signs incorporate the name of the firm and a flower, which the Respondents had previously used. It was further agreed that the signs would contain stripes, which the Appellants had inserted in advertising designed by them for other clients. The Appellants designed the signs whilst employing these elements. The name of the firm was formed with characters of the same design previously used by the Respondents on packages of ice cream manufactured by them. These packages were not shown to the Appellants at the time the signs were ordered, but the ice cream in those packages was freely sold on the market. A verbal agreement was made between the parties, fixing a price for each sign to be installed by the Appellants based upon the model designed by them, to which the Respondents consented, under consultation. According to the agreement, the Appellants made signs for the Respondents, and the Respondents paid a price for them which varied - depending on the size, shape and date of delivery of the signs - but all based upon the same design.

Following a change in the ownership of Respondent 1, the Respondents severed their ties with the Appellants and ordered signs based on the same model, with certain changes, from a different company. The Appellants filed a claim with the District Court on the grounds of infringement of copyright. The District Court found that the sign designed by the Appellants is an "original artistic work" entitled to protection pursuant to the Copyright Law of 1911, but rejected the claim on the grounds that the sign is an "engraving" within the context of section 5(1) (a) of the aforementioned Law, and therefore the Respondents, following whose order the signs had been made for consideration, were the owners of the copyright therein, in the absence of any agreement for consideration to the contrary.

Thus the appeal to the High Court.

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