Full case report

Nichols Advanced Vehicle Systems Inc & Ors v Rees, Oliver & Ors

Reference [1979] RPC 127
Court Chancery Division

Judge Templeman J

Date of Judgment 31 Jul 1978


Summary

Copyright – Infringement – Formula One cars – Working drawings – Subsistence of copyright – Ownership of copyright in drawings – Course of employment – s.9(8), Copyright Act 1956 – Damages – Ss.17,18, Copyright Act 1956


Facts

The Plaintiffs designed and constructed a Formula One racing car, ‘D.N.9’, for use by their team ‘The Shadows’. The Defendants were former employees of the first Plaintiff company, including their chief designer, ‘S’ (who had been instrumental in the design of the D.N.9) and a driver, along with a former backer of the Plaintiff company and the company they had formed together. The Defendant company had designed and constructed a Formula One car, the ‘F.A.1’, for use by their team ‘The Arrows’. The Plaintiffs claimed that in designing the F.A.1, the Defendants had used a number of their working drawings for the D.N.9, in breach of copyright. The drawings had been made by S while he was an employee of the Plaintiffs. The Defendants denied the existence and ownership of copyright in the drawings, and further denied having reproduced them, relying on s.9(8) of the 1956 Copyright Act. Alternatively they argued that any damages should be nominal, relying on s.18(2) of the Act.


Issue

(1) Whether copyright subsisted in the drawings; (2) If copyright did subsist, whether the Plaintiffs owned it; (3) Whether the Defendants had reproduced the drawings, within the meaning of s.9(8) of the 1956 Act; (4) What damages should be awarded, if any.


Held

(1) The drawings were produced with skill and were beyond argument artistic works in which copyright subsisted. (2) The drawings were made by S in the course of his employment under a contract of service, and as such the copyright was vested in the Plaintiffs. (3) The F.A.1 car was plainly a reproduction of the drawings. While some modifications had been made, these were not sufficient to afford the Defendants a defence under s.9(8). (4) S.18(2) required defendants to have believed they were not infringing. Here the Defendants (bar one who was merely an employee) had hoped, rather than believed, that they were not infringing. The infringement was flagrant and additional damages would be awarded under s.17(3). An inquiry as to damages was ordered, along with the relief by way of injunctions and orders for delivery up of the infringing material.


Comment

A relatively straightforward case of copyright infringement, once the facts had been found. The judgment is of interest and importance for its analysis of the damages provisions of the Copyright Act 1956. The injunctions granted by the Judge prohibited the Defendants from using the F.A.1; the Plaintiffs offered the Arrows’ driver, Riccardo Patrese, a D.N.9 to use for the rest of the season. Former member of 5RB, Charles Gray, now Mr Justice Gray, appeared as junior counsel for the Defendants.


Instructing Solicitors

David Lee & Co for the Plaintiffs; Kingsley, Napley & Co for the Defendants