Button Moon Claim for Copyright Infringement

In the case of Allen v Redshaw the claimant was an artist, writer and puppeteer who, in 1978 along with his then business partner, devised Button Moon, a puppet show which was later made into a television programme for children. The programme itself continued to be repeated on various channels, and the claimant had exploited his rights in the work by granting merchandising rights to others. The defendant owned a business producing, among other things, T-shirts, hooded tops and mugs.

In July 2007, the defendant contacted the claimant and expressed an interest in taking a licence from him to produce merchandise. After discussions the proposal went no further. The defendant subsequently produced mugs, T-shirts and hooded sweatshirts which he sold on various third party internet sites. The goods used images similar to those used in the Button Moon programme. The T-shirts carried a disclaimer that stated '100% unofficial', as well as the words 'produced from original artwork & photographs'.

The claimant complained of the sale of products in August 2009. The defendant, while admitting no infringement of copyright, ceased to sell the products until a point after Autumn 2009, when he began to sell the products again. In March 2012, the claimant issued proceedings.

The claimant contended that the defendant had violated his copyright. He submitted that the works of which he was the author were:

• (i) the original Button Moon stage show;
• (ii) the dramatic works underlying the television programme; and
• (iii) original drawings for the puppets, sets and props of the show. Those included Mr Spoon; the space rocket; and the button-shaped moon itself.

Further, he contended that he owned goodwill associated with the words 'Button Moon' and 'Mr Spoon' and goodwill associated with the puppets, sets and props used in the stage show and programme, whether individually or together. He submitted that the defendant's goods misrepresented that the items were authorised for sale by him, leading to passing off and causing damage to the claimant in particular by the loss of potential licensing deals. The defendant argued that, although his products were loosely based on the Button Moon designs, they did not reproduce a substantial part of them and were intended as a parody or joke.

The claim would be allowed.

1. It was held that the rocket and cartoon man depicted on the defendant's products undoubtedly reproduced a substantial part or parts of the claimant's designs. There was no doubt that there was a causal connection between the parties' respective works. There was no defence of parody to an infringement of copyright claim, if what had been taken was a substantial part of the claimant's work. In any case, the defendant's actions had not put the artistic works into the category of a parody.
2. With regard to passing off, on the evidence, there was continuing goodwill in the Button Moon characters. The disclaimer used by the defendant was of low visibility and was not clearly worded. Further, the references to licensed goods, and the use of the words 'Button Moon' to describe the mugs on the defendant's website, constituted a misrepresentation so as to result in passing off

Oliver Kew

Published on 24/05/2013