Fung Chi Fun v. The World (or New World, or Sun Sai Kai) Theatre
Read the full judgment text of HCA 30/1948 on BabelCite. This High Court CFI judgment was delivered on 19 March 1948.
1. In this writ plaintiff claims certain relief against defendants for infringement of his copyright in two dramatic works 'Ho Chu See Nung Ka' (何處是儂家) and another. This judgment deals only with infringement in the case of the work 'Ho Chu See Nung Ka'.
|
HCA000030/1948
IN THE SUPREME COURT OF HONG KONG SUMMARY JURISDICTION Action No.30 of 1948 -----------------
Coram: Mr. Justice E.H. Williams. Date of Judgment: 19 March 1948 ----------------- JUDGMENT ----------------- 1. In this writ plaintiff claims certain relief against defendants for infringement of his copyright in two dramatic works 'Ho Chu See Nung Ka' (何處是儂家) and another. This judgment deals only with infringement in the case of the work 'Ho Chu See Nung Ka'. 2. Particulars of the infringement complained of were that the defendants had exhibited on a number of occasions in their theatre a film bearing the same title as that of the work 'Ho Chu See Nung Ka'. There was no complaint of infringement of anything contained in the body of the work. 3. In the letter of 9th February setting out the points of defence, defendants did not deny that the plaintiff was author of the work but denied he was owner of a copyright in the title, claiming that the words were not original. 4. The evidence given by the plaintiff was that he was a writer of Cantonese songs and plays, and had written about 300 Cantonese plays. In 1941 he wrote the play in question. The plot concerned a girl who, because of her misdeeds, had been driven from her home. A translation of the title is 'Where is my home (or family)?' The expressions is a literary one, not colloquial, and is one which a female and not a male would use. After completion plaintiff had sold the work to a Theatrical party for performance by them, giving them the original. He had kept no copy. Normally the Theatrical party would get copies made for the actors in the play. The play had been performed about 6 or 7 times in Hong Kong. The words 'Where is my home?' were his own composition and not taken from any work. 5. The only witness for the defence was a Chinese teacher. His evidence was that the words 'Ho Chu See Nung Ka' were common in the written language. He could not name any particular work in which they occurred either as the title thereof or otherwise but he claimed that they were so common that the expression might occur in any newspaper. 6. At the close of the evidence, solicitors for both sides addressed me on the law. Solicitor for the plaintiff submitted that the words were an expression of thought, originating from the author; though individually they were of common use, when put together they conveyed an idea and were therefore the subject of copyright (7 Hailsham p.521 para. 873). Even the title of a play, provided it was original and a literary work, could be the subject of copyright (Weldon v. Dicks (1878) 10 Ch. D. 247). Solicitor for the Defendants submitted that the few words forming the title could not be said to be an original literary work. As to whether the title of a work was the proper subject of copyright, he referred to a passage in Coppinger on the Law of Copyright 7th Edition p.51 to the effect that Weldon v. Dicks had later been overruled. He also referred to Broemal v. Meyer 29 T.L.R. 148. 7. Before I proceed to discuss the law, I would like to make a few observations. No copy of plaintiff's work was produced in Court. I do not know the length of the play: it may have only been a short one-set play or it may have been a very lengthy one. Plaintiff is now seeking damages for the infringement of copyright in a work of which he does not now possess any copy. No complaint is made of any infringement of copyright of the play but only of the title. It is to be remembered that the title must be of such length as to constitute a literary composition of the author before the title is the subject matter of copyright (7 Hailsham p.525). There is no evidence as to the nature of the plot depicted in the film shown at the defendants' theatre. 8. I do not propose to refer to the facts of the cases quoted except in the briefest manner. In Weldon v. Dicks (1878) 10 Ch. D. 247, copyright in the title of a book called 'Trial & Triumph' was held to exist; part of the headnote reads, "Copyright in the 'title' of a book as being a material portion of a work will be protected, although another book published under a similar title be totally different in form and contents". In Dicks v. Yates (1881) 18 Ch. D. 76 referred to later, it was held that 'plaintiff had no copyright in the title "Splendid Misery" for copyright can only exist in something original and the mere adopting as a title a hackneyed phrase, which moreover had been used as the title of a novel many years before, and which for anything that appeared might have been copied from that novel, could not give any copyright in that title.' In Broemal v. Meyer (1912) 29 T.L.R. 148, it was held that the proverb 'Where there's a will there's a way' could not be the subject of copyright. Part of the judgment of Warrington J. reads (p.149) 'There was no satisfactory decision in favour of the contention that there was copyright in the title of a book by itself, and there was plenty of authority for saying that if there was copyright the title must be such as to be of an original and peculiar nature'. 9. Since the hearing of the case, I have been able to find a recent authority of the Privy Council which is, in my view, of great assistance in deciding the question at issue. That is Francis Day & Hunter v. 20th Century Fox Corporation Ltd. (1940) A.C. 112. In that case, appellants were owners of the copyright in a song entitled 'The man who broke the Bank at Monte Carlo' and claimed damages for infringement of their copyright by the respondents by performance of a motion picture entitled 'The Man who broke the Bank at Monte Carlo'. Apart from the fact that the title of the song and of the motion picture were the same, no part of the actual words or music of the song were used in the film. It was held that the use in the motion picture of the words of the title were too unsubstantial a matter to constitute an infringement of the appellant's literary copyright. This passage of the judgment on p.122-123 is very relevant:
10. Applying the reasoning in that case to the present case, I consider that, though there may be a certain amount of originality in choosing the title of the play, it certainly is not of a very high degree. I should think that for some years before the plaintiff wrote his play, the question 'Where is my home?' must have occurred to and been expressed by many a Chinese woman who returned to where her home and family formerly were only to find the home destroyed by bombing or fire at the hands of the Japanese and her family missing. 11. As I have already said, I do not know what was the theme of the film: it may have been entirely different from that of the play. The plaintiff has failed to satisfy me that the title, consisting as it does of these five words, is on so extensive a scale and of so important a character as to be a proper subject of protection against being copied. I therefore hold that as regards this part of plaintiff's claim, there must be judgment for defendants with costs.
Representation: |