Facts:

The plaintiff operated a business on the Gold Coast in Australia, called Infinity Attraction. Visitors walked through a series of “maze-like” rooms, each filled with varying special effects and illusions. The plaintiff described its attraction as “multi-sensual environments filled with unique special effects, emotive atmospheric sound fields, sensuous aromas, ultra groovy music and amazing spectacular illusions”.

The plaintiff sought an interim injunction against the first defendant (Clownfish) and its two directors and shareholders. Clownfish had begun operating two businesses in Auckland and Queenstown known as Odyssey Sensory Mazes. Visitors walked through a series of rooms which Clownfish’s website described as having “darker challenging spaces, quirky physical obstacles and challenges, illusions, lighting effects, scents, sound effects and strange sensations”.

The Clownfish directors admitted to having visited the plaintiffs Infinity Attraction in Australia and then designing Odyssey in just six months following that visit.

The plaintiff alleged that the defendants had infringed its copyright in a work of artistic craftsmanship. It argued that the creator of its Infinity Attraction had created a series of unique artistic environments unconstrained by functional considerations to provide an entertainment and leisure experience featuring immersive art.

The plaintiff also alleged both passing off and a breach of section 9 of the Fair Trading Act. It claimed that there was reputation and goodwill in New Zealand associated with its Infinity brand due to visitors from New Zealand and its advertising here. The misrepresentation alleged was an implied representation that the defendants’ Odyssey business was connected with the plaintiff’s Infinity Attraction.

Decision

(1)       Copyright: work of artistic craftsmanship

There was fundamental disagreement between the parties as to whether the Infinity Attraction was capable of being considered a work of artistic craftsmanship. The defendants alleged that Infinity consisted of many different types of works each of which required separate consideration.

Woolford J noted that the category work of artistic craftsmanship had been seen by commentators as specifically bridging the category of designs and models; also that it might allow the court to look at the combination of more than one work so as to regard the combination as an artistic work rather than being considered a “compilation” ^[1] In the leading case of Bonz Group (Pty) Limited v Cooke ^[2] the court there had emphasised the need to look at works of artistic craftsmanship as a whole and then to determine “whether such part as may have been taken by the defendant is a substantial part of the plaintiff’s work”. [26]

Woolford J noted [27] that giving consideration to the overall work was most logical in relation to artworks which often consisted of linked, disparate objects. He noted that it could be significantly disadvantageous to artists if they had to prove every aspect of the work’s components was copyrightable based on objections by defendants.

The judge held that there was a serious question to be tried that the Infinity Attraction was a work of artistic craftsmanship capable of being a copyright work [33].

1. A series of spaces with differing “environments” that viewers could experience could be considered to have some artistic qualities. “Given the existing practice of many contemporary artists who create similarly immersive experiences in their art, through which visitors can walk, the view that there is objective artistic quality to creating immersive spaces is not unreasonable. The fact that people had to walk through Infinity to experience the spaces and rooms does not alter the ability of the particular ordering of the rooms, arrangement of the experiences to evoke an artistic experience”. The commercial element to Infinity was not a sufficient factor to suggest that there was not a serious question to be tried [31]. 

2. As to whether the creator was an artist and craftsman, there was evidence that the creator took pride in his workmanship in relation to Infinity. The creation of Infinity had required skill in making it and conceptualising its construction and the overall experience. Infinity appeared to have sufficient “aesthetic appeal” based on the photographs and its popularity with visitors to sustain defining the creator as an artist [32]. 

(2)       Originality

As to originality, the evidence provided as to the development of Infinity had detailed the design and development process. This suggested that the work had originated from the creator and there had been no suggestion that it was copied from another work. [36]

(3)       Infringement of copyright

There was a serious question to be tried as to infringement. A preliminary assessment supported that the overall schema of Odyssey was very similar to Infinity with the shared theme of walking through immersive spaces, in conjunction with the similarities between those spaces (eg their entry tunnels both having rooms of bouncy swiss balls, with infinite recession spaces, with mirrors and lights to create single “star-gazing” illusions, with elastic/bungee cords stretched throughout the room). These similarities combined with the similarities in the approach to displaying the attraction (entry video, gloves, similar colouring in the shop-front and advertising) created objective parallels between them [40]. There was therefore a reasonable case to be answered as to the overall similarities between the attractions.

The visit by the defendant directors to Infinity Attraction and the speed of the subsequent creation of Odyssey was significant enough to suggest a sufficient causal connection to sustain an inference of copying could be made out on the facts at trial [41].

As to whether the claimed infringement was of a substantial part of the plaintiff’s work, any conclusion at the interim injunction was necessarily speculative as to what would be considered to have been copied. However, if the overall schema of Infinity, in conjunction with sufficient identifying features – for example, the colour schemes, language use and large portions of the presentation of the attraction – were found to be copied then those would comprise a substantial part of the work [42].

(4)       Passing off and Fair Trading Act infringement

As to goodwill in New Zealand, there was evidence of the plaintiff having goodwill in Australia and the close relationship between New Zealand and Australia could be said to extend that goodwill into New Zealand [49]. While more evidence would be necessary, there was a reasonable premise for the plaintiff to claim that goodwill existed [49]. There was also a tenable claim that misrepresentation “the similarities between the businesses could give rise to a conclusion that they are linked in some way, which implies a similar standard” [49]. There was therefore a serious question to be tried on these causes of action as well.

(5)       Balance of convenience

Overall, however, Woolford J refused the interim injunction. Of particular significance on this issue was that the plaintiff had no competing attraction in New Zealand and as yet had not provided any evidence relating to actual confusion or loss of business. Its concern appeared primarily focused on the future loss to it of a franchising opportunity. That pointed in favour of the defendants as it suggested that no damage (which would be irreparable in future) was currently occurring to the plaintiff’s business. Damage to a future franchisee could be remedied by eventual closing or modification of Odyssey or through damages equal to the loss of the franchise value. An interim injunction would be highly likely to ruin the defendants’ business entirely. The terms of the injunction sought would pose a significant barrier to any ongoing trading by the defendants [56].

 

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[1] And therefore within the category of ‘literary work’ under the New Zealand Act. However under the Act the definition of   “compilation” can specifically comprise combinations of different types of copyright work eg artistic, literary, sound readings and films.

[2] [1994] 3 NZLR 216