Fleming v Fletcher Concrete & Infrastructure Limited
CIV 2005 404 4598
Auckland High Court
1 December 2006
Mr Fleming, a former sales manager of the defendant company, claimed that the defendant (Fletchers) had infringed copyright in design drawings for a cattle stop with three novel features. Mr Fleming claimed that he had provided the design to Fletchers (while employed there) on the basis that Fletchers would pay him if it used the drawings.
The evidence was that Mr Fleming’s design had its genesis in his experiences as a farmer prior to commencing work for Fletchers. On commencing work, Mr Fleming showed his cattle stop drawings to Fletcher’s regional sales manager and later provided them to the defendant’s engineering department. The drawings were never handed back and by the time of trial were no longer in existence and therefore not in evidence. However, citing Wham-O Manufacturing Co v Lincoln Industries  1 NZLR 641 (CA), the High Court held that the drawings were artistic works in which copyright could subsist and that the absence of Mr Fleming’s preliminary drawings did not prevent him from establishing copyright in those drawings.
The main issue in the case was whether Mr Fleming or Fletchers owned copyright in the drawings. It was submitted for Fletchers that it owned copyright by virtue of s21(2) of the Copyright Act 1994 which provides:
“Where an employee makes, in the course of his or her employment, a literary, dramatic, musical or artistic work, that person’s employer is the first owner of any copyright in the work.”
The High Court accepted that it was no part of Mr Fleming’s job as a sales manager to design new products. Further, it was accepted that Mr Fleming did not carry out any of the design and drawings of his cattle stop in the course of his employment with Fletchers. Although Fletcher’s engineers had converted Mr Fleming’s drawings into engineering drawings, that had been purely a drafting task involving no design input.
On the facts, the Court accepted that copyright subsisted in the drawings and some modified drawings subsequently done by Mr Fleming. The Court found that Mr Fleming’s copyright had been infringed by both versions of the cattle stop produced by Fletchers. Fletcher’s positive defences of estoppel and acquiescence failed on the facts and the Court ordered an account of profits in favour of Mr Fleming.