When noodles bake and cookies crumble: copying and coincidence Down Under

Blessed as it is with excellent writers, the 1709 Blog is also privileged to receive many fine contributions from its friends and readers.  This week we have already been treated to articles from Fidel Porcuna (here) and Antonella Barbieri and Federica De Santis (here). Now it's the turn of an Australian IP enthusiast, Julian Gyngell (Kepdowrie Chambers), who writes as follows:

That’s the way the cookie crumbles (and other denials of copying)

The recent and public dispute (so far limited to social media) between Australia’s well-known Women’s Weekly magazine and rival Donna Hay Magazine has caused me to think about certain considerations that might be relevant when selecting one’s defence to an allegation of copyright infringement.  

The Weekly v Donna Hay tiff arises out of the photos that were published on their respective cover pages. The Weekly published its photo some 11 months after Donna Hay’s but that didn’t stop Donna’s editor from posting to her Facebook page her view that: “It bakes my noodle to see my team try so hard to come up with new inspired ideas for the magazine only to have them ripped off in the market a bare 11 months later.’’

The battle heated up when the Weekly spokesman allegedly replied: “That’s the way the cookie crumbles.  They’re biscuits. There’s only so many ways you can photograph them.’’

Leaving aside the specifics of this particular dispute, the nature of a “there’s only so many ways you can do such-and-such” defence is, in essence, a denial of copying (i.e. the alleged infringer is saying that the similarities are coincidental and, furthermore, given the subject matter, the coincidence is not surprising).  The alternative (and misconceived) basis of the “only so many ways” defence is that it is not even a denial of copying because the defendant believes wrongly that it is entitled to copy because of the limited options.  The latter basis of the defence is fundamentally flawed but even the former has its limitations that I will come to shortly.

That a defendant has not copied the original (the similarities being coincidental and even to be expected) is obviously a damn good defence to copyright infringement, but must be recognised for its potential weakness.  A defendant that relies on the defence of denial will come unstuck if the judge does not believe the bald assertion; perhaps the defendant’s witness(es) performed badly in the witness box; perhaps the plaintiff’s barrister did a particularly good job in cross-examination; perhaps the denial just didn’t ring true having regard to the similarities of the works and the absence of evidence of an alternative source of inspiration or some other credible explanation of independent creativity; perhaps the judge accepted the allegation of unconscious copying.

For whatever reason, if the denial (in the face of substantive similarities) doesn’t get over the 50/50 balance of probabilities then, in my experience, it’s not going to take much to tick off the substantial reproduction test and hence a finding of infringement (perhaps if only because if the judge doesn’t believe the denial and finds that copying took place then there is a very real risk that his/her Honour will also conclude that the copying involved a substantial reproduction – thus leading to the scenario that the substantial similarities (even coincidental similarities) of the works may strongly influence the finding as to copying (in the sense that the denial defence is not made out) and the similarities will also govern (in part) the issue of the substantiality of the reproduction.

This scenario, of course, is only a specific example of the truism applicable to all matters litigious of having an end-to-end story, not a mere denial, that must sound logical. It must start “in the beginning” and the actors must all live “happily ever after”.

So, if it’s going to be a denial of copying based on the “it’s a coincidence, there’s only so many ways you can do such-and-such” argument, then face-facts – you’ve just admitted (as the Weekly’s spokesman has done) that the works have substantive similarities.  As a lawyer, one therefore needs to test to destruction your client’s story about how the work in question was in fact created – what were in fact the inspirations and/or sources for the work – what were the creative juices that were flowing at the time?  If the client’s story is plausible, comprehensive and attests to independent creativity (and it will do so if it’s true) then crack on and that’s your cast iron defence.

But the initial discussion with the client has to commence with “full and frank” disclosure – ie. “tell me now and tell it straight” because, once you’ve pleaded the “it’s a coincidence” denial, then it really doesn’t wash to say (in the alternative) that, even if we did copy, the changes that we made (i.e. the bits that we didn’t copy and the bits that we added or adapted) give us the get out of jail card that we need. Indeed, it has been observed (in the High Court of Australia, S.W. Hart & Co. Pty. Ltd. v Edwards Hot Water Systems (1985) 159 CLR 466 per Wilson J) that: “such dissimilarities as are apparent may be seen as no more than a deliberate attempt to obscure what has actually taken place, namely, the appropriation of another person's labour.”

Arguably it is simply nonsensical to plead a denial of copying and yet try to hold up one’s sleeve an alternative defence based on making sufficient changes to dodge the infringement bullet – surely one can’t credibly aver making conscious alterations or changes after denying copying at the outset?

Of course, if the plaintiff’s work was part of the client’s creative juices then that is not the fatal end of the matter.  But if that is the case then the defence should make that concession and focus on the “it’s not a substantial reproduction” argument, including going to town on the significance of the alterations and changes, as well as identifying other sources of inspiration and creativity (assuming that to be the case).

The point, therefore, for the Weekly and its lawyers to consider (should Donna go litigious) is whether its spokesman’s defence that “it’s a coincidence, there’s only so many ways you can photograph [biscuits],” will ring true, ie. is this defence supported by a credible explanation of the history and context in which its cover page photo was independently conceived, arranged, staged and photographed.  If that explanation is looking “thin” then the Weekly might consider it to be tactically advantageous to concede the extent (perhaps just a very limited extent) of the copying while leaving it open for it to focus legitimately on the substantial differences between the two photos (that are apparent at least to this author – however, I note that a Sydney newspaper is running a poll on the thoughts of its readers and 42% (of almost 8,000 respondents) have voted “yes” to the question: Do you think the Women's Weekly cover was a copy of Donna Hay Magazine?  34% say it may be a coincidence, and only 24% say that they don’t see a resemblance).