On face value the action against Timevale seems reasonable and valid. Copyright subsists in the Kenneth Maynard’s work and the Ettamogah pub was created to be a physical replica of this work.
If Timevale cannot establish a defence or broker a settlement, the relevant remedies Southern Cross will be entitled to are:
- An injunction against Timevale, preventing further trading until the pub is sufficiently altered so that a breach of copyright no longer exists;
- An account of profits; and/or
- Depending upon Timevale’s behaviour, additional damages.
Without a deal being brokered the classic icon as we know it could indeed meet its unfortunate fate.
If the matter proceeds to Court it will be most interesting to see what value, if any, the Courts place on the goodwill created by the pub in its own right.
Can the passage of time be seen to dilute Southern Cross’ copyright, or would such leniency be seen to open the floodgates and undermine that which copyright laws are intended to protect?