Políticas educativas: Carta Magna, Plan Nacional de

Much of what was discussed in relation to the rights of a Copyright owner of literary and musical work applies to the rights enjoyed by an owner of an artistic works especially as it concerns reproduction. Thus, where a copy or reproduction of a work is not exact, the Court must examine the degree of semblance to determine whether infringement has actually occurred. In Bauman v Fussel, the appellant, a reputable photographer, had gone to Cuba and there took a photograph of a cock-fight, which was published subsequently in the illustrated

349 C.R.A.N. Section 6 (2).

350 Ibid.

90 Magazine Picture Post.³⁵¹The first respondent, an artist, saw this photograph, cut it out of the magazine and painted it in a vigorous style. The artist admitted that the idea for his painting was indeed taken from the picture. The second set of respondents, who are art dealers, displayed the picture in their showroom and subsequently sold it to the third respondent. The appellant brought this action claiming damages for the infringement of Copyright and for delivering up of the painting to him. Although the Court accepted the possibility of an infringement in a case like this, the question was whether the painting was a substantial copy of the appellant‟s photograph. While agreeing with the fact that an infringement has occurred, the Court held that the general colour of the birds was broadly similar and their positions the same although the general effects of both pictures were different. In Brooks v Religious Tract Society,³⁵²it was contended that part of an engraving of a collie dog had been copied and part altered. The Court held that the defendant had not only taken the dog but also „the feeling and artistic character of the plaintiff‟s work‟. In Bradlbury Agnew v Day, ³⁵³ the Court considered whether the defendant‟s living pictures infringed the plaintiff‟s Copyright in a cartoons.The Court rightly held that breach of Copyright was established under the 1911 Copyright Act of England which made living pictures possible subjects of infringement.

In the United States case of Kish v Ammirati & Puris Inc.,³⁵⁴ the facts involved two photographs which were taken in the same corner of a night club with the same background and the underlying tone, mood lightening, camera angle and position appearing similar.In denying the defendant‟s motion to dismiss the plaintiff‟s claim for Copyright infringement, the Court rightly held that there were sufficient similarities in both pictures to prove copying.

It went further to hold that it did not matter that the first photograph was a woman holding a concertina while the second was of a man holding a bottle. In the Nigerian case of Ukaoha v

351[1895] A.C. p.20 at p.27.

352[1897] 45 N.R. p.476.

353 [1916] 32 T.L.R. p.349.

354 657 F. Supp. p.380 (S.D.N.Y. 1987).

91 Broad-Based Mortgage Finance Ltd., ³⁵⁵ the plaintiff sued the defendants for the infringement of his Copyright in a 17 story building model.He alleged that he had loaned the building model to the defendants for display in the latter‟s conference room until he could complete the model of a bungalow which the second defendant had specifically requested him to make.

Although the defendants neither made drawings nor actual buildings from the model, the plaintiff‟s complaint was that the defendants had caused several photographs of the model to be published in newspapers without his consent and that the model was described by the defendants as their proposed corporate headquarters in Abuja. This was after the defendants had, at the formal commissioning of its Lagos Office, exhibited the same model to members of the public. The plaintiff also alleged that the authorship of the model in one of the newspaper publications was wrongly attributed to another firm. The Court correctly held that the acts done or caused or permitted to be done by the defendants amounted to Copyright infringement.

It should be noted that artistic works include works of architecture in the form of building models; and that Copyright in a work of architecture includes the exclusive right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form, or in any form recognizably derived from the original.³⁵⁶ Thus, the right of the Copyright owner of a work of architecture is qualified under the Act by excluding the right to control the reconstruction in the same style as the original of a building, to which the Copyright relates. In line with this provision, the United States District Court rightly held in the case of Altken & Ors. v Empire Construction Co. that neither the developer nor the constructor had Copyright in an architect‟s drawings.³⁵⁷ Therefore, when an architect prepares a building plan at the request of a client, the Copyright remains vested in law in the architect. What the client obtains is the right to construct his house in accordance with the

355[1992] 2 F.H.C.L.R. p.477.

356 C.R.A.N. Section 6 (2).

357 542 F. Supp. p.252; 218 USPQ p.409.

92 plan and neither the client, nor the builder, can reproduce that plan or any substantial part thereof except with the license of the architect, express or implied. In Blair v Osborne &

Anor.,³⁵⁸ lord Denning succinctly put the position thus:

Where the owner of a building plot employs an architect to prepare plans for a house on that site, the architect impliedly promises that, in return of his fees, he will give a license to the owner to use the plans for the building on the site. The Copyright remains in the architect, so that he can stop anyone else from copying his plans or making a house from them, but he cannot stop the owner who employed him from doing a work on the site in accordance with the plan. If the owner employs the builder or another architect, the implied license extends so as to enable them make copies of the plans and to use them for that very building on the site but for no other purpose. If the owner should sell the site, the implied license extends so as to avail the purchaser also.

3.2.9 Publication, Inclusion in a Cinematograph Film, and Adaptation of an Artistic