Thing 000789 (Prince Charming)

In the summer of 1981, Stuart Leslie Goddard, better known as the singer of the British tribal new wave/glam-punk band “Adam and the Ants” devised a new look for himself. Since 1979, Goddard had performed wearing a white greasepaint line that ran from one ear to the other, crossing his face in the region of his nose. For his new look he based his clothes on eighteenth-century Parisian dandies called Les Incroyables. His new make-up was inspired by facial markings of indigenous peoples that he had seen in the National Museum of the American Indian. The make-up consisted of three greasepaint lines - two red lines with a light blue line between them - running diagonally from nose to jaw on one cheek. It also included a heart over the left eye-brow, and a beauty spot by the left nostril. His hair style featured a gold braid, a kiss curl and Valentino sideburns. The look appeared in connection with the release of Adam and the Ants’ third record called Prince Charming. Goddard, a formal student of Hornsey Art College, made sketches of his look referred to also as Prince Charming. The Merchandising Corporation of America commissioned Allan Ballard, a known photographer, to take a series of photographs of Adam and the Ants in the Prince Charming look. They owned all of the copyrights in these photographs and exploited them by licensing reproductions of the photos in publications. For example, on September 4, 1981, the Sun newspaper published a large photograph by Ballard under the headline “Adam’s Top of the Fops”.

Harpbond, the publisher of magazines such as Pop Tops and Rock Star News, had licenses via Scope Features in order to publish photographs of Adam and the Ants in the old look. Harpbond took an old photograph of Adam and the Ants wearing his old make-up and got someone to remove the white line and put on the new make-up via photo-montage. They based themselves on the photos of the news article in the Sun. This photo montage was then printed as a poster. It was published together with a drawing of Adam and the Ants’ new look they commissioned from illustrator Frank Langford.

Following these events, Merchandising Corporation of America sought relief for copyright infringement in Goddard’s make-up, sketches and Ballard’s photos. Its first claim was to prevent Harpbond from using any of Ballard’s photographs. The second claim was to restrain Harpbond from reproducing or authorising reproduction of the make-up. On November 25, 1981, the case Merchandising Corporation of America and others v. Harpbond and others took place at the High Court of Justice, Chancery Division. Alastair Wilson appeared for the plaintiffs and Strachan appeared for the defendants. Judge Walton stated:

[...] In relation to their use of Mr. Ballard’s photograph, [Harpbond and others] rely upon a licence to use the same, given by Scope Features to whom the superintendance of such matters was delegated by [Merchandising Corporation of America] to Mr. Brown, for value received. [...] [I]t was not assignable in any shape or form because Mr. Brown was informed that it was a matter of materiality to the licensing body who the person licensed was. [...] [Merchandising Corporation of America and others] have tried to keep strict control of photographs incorporating the new look with a view to obtaining the maximum advantage therefrom by merchandising and in other similar ways. [...] If there is a wrongful breach of this policy it seems to me that they may suffer very severely financially. [...]

[...] I now turn to the altered photograph. The case arising out of this is put alternatively upon the grounds of breach of copyright in the sketch and/or the photographs, but more particularly I think the sketch [...] So far as infringing any copyright in the sketch is concerned, it is quite clear to me from inspection that nobody would take the altered photograph as having been copied from the sketch. [...] It appears to me that there is, of course, copyright in the sketch and there may very well be infringements thereof if the sketch is copied, but that it is not open to [Merchandising Corporation of America] to select certain parts only of a work in which copyright exists and say that there is a separate copyright therein. What is the subject matter of copyright is the sketch, the whole sketch and almost nothing but the sketch. That is not to say, of course, that one has to copy the whole sketch in order to infringe the copyright, but it is certainly not open to [Merchandising Corporation of America] to pick out bits of the sketch and detach them from the matrix in which they are depicted in the sketch and then claim copyright for those in themselves. [...] It is also suggested that there is an infringement of the copyright photograph [...] [D]ue to its origins in the other photographs, the dress is completely different and, although of course the face is the face of [Adam and the Ants], so that there is a generally superficial likeness, the pose of the head has not been altered from the original photograph and I do not think that the additions thereto to bring it up to the new look in fact breaches any copyright owned by the [Merchandising Corporation of America]. [...]

[...] This leaves for consideration [Frank Langford]’s drawing. [...] The photograph from which [Frank Langford] worked was from a photograph by a Mr. Matheu [...]. However, the real question to my mind is not what was the material from which [Frank Langford] prepared his drawing but whether that drawing, when made, does in fact infringe the copyright in any of such material by following such models or any one of them or any parts of any one of them too closely. [...] It must, I think, be a question of impression in the present case. [...] [Mr. Langford] says “I used the poster as the basis for the facial features. I copied the elements of the ‘new look’ from the photograph in The Sun and added the colours from instructions given by Mr. Miller.” [...] Having looked very carefully at the drawing by Mr. Langford, I do not think that it breaches any copyright. [...]

[...] Mr. Wilson [...] candidly admitted that he had been unable to find any case in which what one might describe as “make-up” of this nature had been protected by copyright in anything even remotely like the circumstances with which we are dealing. It seems to me that his case on this point raises a question of an entirely novel nature, which, if it is to be established at all, deserves consideration by a very high court indeed. [...]

The court granted an interlocutory injunction against reproduction of the Ballard photographs and declined to find copyright infringement in respect of the altered photograph or of Langford’s portrait, on the ground that, in neither case, a substantial part of the sketch or the photographs had been reproduced. Moreover there was no authority for holding a particular style of make-up to be an artistic work. Merchandising Corporation of America appealed these findings.

On December 16, 1981, the case Merchandising Corporation of America v. Harpbond took place at the Supreme Court of Judicature, Court of Appeal. Alastair Wilson appeared for the plaintiffs and Lionel Swift appeared for the defendants. Judge Lawton stated:

[...] The appeal centres round what seems to me to be a novel and starting proposition, that there can be copyright in unusual facial make-up. [...] [W]hat Mr. Wilson, on behalf of [Merchandising Corporation of America], has asked us to do is to say that there has been a breach of copyright in reproducing the characteristic make-up used by Mr. Goddard in his “new look” and (it is said) indirectly copying the sketch which was wisely made, perhaps on advice, by Mr. Goddard before he launched his “new look”. [...]

[...] It is said, so far as the make-up aspect of the submission is concerned, that the make-up is covered by section 3 of the Copyright Act 1956. [...] Mr. Wilson’s bold submission at the beginning of his presentation of his clients’ case was that the marks on Mr. Goddard’s face by way of facial make-up were painting. That caused me very considerable surprise, because, although there are various statutory provisions in the Act defining various words used in it, there is no statutory definition of a painting. “Painting” is a word in the ordinary usage of the English language and it is a question of fact in any particular case whether that which is under discussion is or is not a painting. It seemed to me, right at the beginning of Mr. Wilson’s submissions (and I want to be restrained in my language), that it was fantastic to suggest that make-up on anyone’s face could possibly be a painting. Mr. Swift, in his succinct and concise reply, pointed out what had occurred to me and I had mentioned to Mr. Wilson in the course of argument, that a painting must be on a surface of some kind. The surface upon which the startling make-up was put was Mr. Goddard’s face and, if there were a painting, it must be the marks plus Mr. Goddard’s face. If the marks are taken off the face there cannot be a painting. A painting is not an idea: it is an object; and paint without a surface is not a painting. Make-up, as such, however idiosyncratic it may be as an idea, cannot possibly be a painting for the purposes of the Copyright Act 1956.

[...] The next submission made by Mr. Wilson was that there had been indirect copying of the sketch. [...] [W]hat had happened was that Mr. Langford had used the concept of the make-up and, for the purposes of using that concept, had taken into account the photograph published in the Sun newspaper and had produced that which was remarkably like the photographs taken by Mr. Ballard. [...] Clearly the portrait was not a copy of the sketch. It was something entirely different. Mr. Wilson [...] based his argument largely on the assertion that what Mr. Langford had done [...] was to use a substantial part of the sketch, the part which he had used being the lines on the face. [...] Two straight lines drawn with grease-paint with another line in between them drawn with some other colouring matter, in my judgment, by itself could not possibly attract copyright. It is only when they are put on Mr. Goddard’s face that anything particularly relevant to Mr. Goddard comes into existence. When they are taken away from the sketch, as they must be taken away if their reproduction on anything else is said to be a reproduction of a striking part of the artistic work, then [substantial must be decided by its quality rather than its quantity]. [...]

The court held that facial make-up was lacking fixation in order to be protected as painting. Langford’s portrait was not a copy, direct or indirect, of Goddard’s sketch. All that had been used were the two straight lines, and their reproduction was not a substantial part of the sketch.