The High Court has ordered Playboy Enterprises International Incorporated to answer four further questions about its copyright claim and produce the photographs and licence documents at issue in its case against Entertainment Media Networks Limited. The ruling concerns the steps needed to clarify and defend the proceedings; it does not decide whether copyright or other rights were infringed.
The case concerns allegations that Entertainment Media Networks put a link on its website to photographs of model Kate Moss in various stages of undress. Playboy Enterprises says the photographs were prepared for a promotional 60th anniversary edition of Playboy magazine and that it held the exclusive licence to the relevant rights. It alleges the use of the photographs and the link were unauthorised and unlawful. Those are claims in the proceedings, not findings made in this judgment.
The defendant applied for further particulars and production of documents, saying it could not plead a defence without greater precision. In particular, it argued the plaintiff had not specified which copyright-restricted acts it said the defendant had committed, making it difficult to identify applicable statutory defences.
Justice Baker said a party bringing a statutory claim must identify with sufficient clarity where the alleged rights and breaches sit within the legislative scheme. The plaintiff’s descriptions—including that the defendant “reproduced, publicly displayed, distributed and transmitted” the works—did not make clear which statutory acts were alleged. The court directed the plaintiff to reply to questions 4, 5, 6 and 8. It said the defendant was entitled to know whether any or all of the forms of making a work available to the public under section 40 of the Copyright and Related Rights Act 2000 were alleged.
The court also ordered production of copies of the photographic works and documents showing the exclusive licence or licences the plaintiff claimed to hold. Justice Baker considered the photographs and licence documents central to the claim and to how it could be defended.
The court declined to require further particulars on the trademark, contract, moral rights, breach of confidence and interference with economic relations claims, finding the information already provided sufficient for the defendant to plead to them. The judgment records that the contract claim had been clarified as alleging inducement of a breach of a contract between the plaintiff and third parties.
The order was made on a motion under the Rules of the Superior Courts. It addresses pleadings and document production at that stage of the litigation; the judgment makes no determination of liability, damages or the ultimate merits of the claims.