ABSTRACT
It is often said that, in assessing whether or not an infringement has taken place, courts must
consider the ‘quality’ of the work taken by a defendant and not its ‘quantity’.44 This is, of course,
uncontroversial if it simply reminds decision-makers that ‘labour and skill’ can reside in
‘subterranean’ elements of a work, such as plot, characterisation or overall design. Consider the
example of a painter who, in making a non-literal reproduction of a photograph, reproduces the
positioning of the photograph’s subject. Quantitatively, that element may not amount to a great
deal. However, qualitatively, it could represent the entirety of the relevant input of the
photographer and would therefore be likely to constitute a substantial part of the work.45 In this
sense, the idea that ‘substantiality’ should be considered qualitatively is consistent with the model of
copyright law outlined in this chapter. However, the idea does not always seem to be applied in this
sense.
