• Rosie Burbidge

Moral rights claim bound to fail


Holidays don't always have to be in a village

Moral rights disputes don’t come to court very often, so Mrs Justice O’Farrell’s judgment in The Front Door (UK) Lt (t/a Richard Reid Associates) v The Lower Mill Estate Ltd makes for interesting reading.


The particular hearing concerned various applications arising in a case over the development of "Silverlake", a holiday village in Weymouth. The claimant (The Front Door, trading as Richard Reid Associates) is an architectural practice and the defendant (The Lower Mill Estate Limited, or LME) is the project developer.


The dispute centres on work done for LME by WFA Associates Limited (previously trading as Richard Reid Associates and the company for whom Richard Reid previously worked). This was work for which WFA received a fixed fee in return for assigning copyright to LME.


Moral rights


The claimant argued that it was not properly attributed for its work, and consequently had a claim for infringement of moral rights under Section 77 of the Copyright, Designs and Patents Act 1988 (CDPA).


However, the judge found that the moral rights claim did not disclose an arguable cause of action and was bound to fail for three main reasons.


First, the claimant was not the author of the drawing and had no moral rights in it. The author was Richard Reid, who was not a party, and the rights were not assignable.

Secondly, there was no assertion of moral right for the purpose of section 78 of the CDPA so as to give rise to an actionable claim.

Thirdly, there was a complete defence by reason of LME’s ownership of copyright: WFA assigned the design copyright to LME and the uses of the designs and drawings were authorised by LME as owner of copyright: “In those circumstances, no moral right applies.”


She therefore struck out the moral rights claim.


Passing off

The claimant also argued that there was passing off (or, rather, reverse passing off*) on the basis that LME and other proposed defendants misrepresented themselves as the authors of the drawing and speculative masterplan for the village.


This claim was found to have no real prospect of success and was refused. The judge said that the claimant had failed to prove either that it owned the relevant goodwill of WFA’s business, that there was any misrepresentation, or there was reliance on any misrepresentation.


*Reverse passing off is a particular type of passing off which originated in a case to do with conservatories. As the judge summmarised: "In that case, the defendants showed prospective customers photographs of ornamental conservatories as constituting a sample of their goods and workmanship; in fact, they were photographs of the [claimants'] conservatories." See Bristol Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC 455


To find out more about the issues raised in this case including trade mark disputes and filing contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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