Case No.:

AC-CR-REV-225-1958

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 344—Criminal misappropriation—Photographic film developer gives complainant’s prints to newspaper—Not movable property

·  Criminal law—Penal Code, s. 353—Receiving stolen property—Publisher receives co pies of complainant’s photographs from film developer—Not movable property

Accused No.1, a photographic film developer, gave copies of prints of complainant’s photographs he was processing to Accused No. 2, who published them in a newspaper without the permission of complainant. The photographs were characteristically complainant’s . Accused No. i was charged with criminal misappropriation and Accused No. 2 with receiving stolen property. Both were quitted.
Held: ( Making and transferring to a third party extra copies of complainant’s photographs does not constitute misappropriation of movable property, and therefore is no offence under Penal Code, s. 344

(2) Receiving extra copies of complainant’s photographs from his film developer without complainant’s permission does not constitute receiving stolen movable property, and therefore is no offence under Penal Code, s. 353
Obiter dictum: Because of the photographer’s reputation for a characteristic kind of photograph, a tort action may lie against the developer who gave away prints and the publisher who received and published them without permission.
 

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. GELAL EL HAKEEM AND ANOTHER

AC-CR-REV-225-1958

M. A. Abu Rannat C January 10, 1959 complainant, Abdel Dayim Abu Bakr, states that he delivered to Accused No. 1, Gelal El Hakeem, two films for development and production of 32 photo cards.He states that he received the 32 cards and paid for them. On another day he visited the firm of El Salamabi and found one photo card identical With  the cards produced from his films. He learnt that the photo was

given by Accused No.1 to Accused No. 2, Mohamed Mekki Mohamed, who published it in El Nas Newspaper.

These facts are not denied, but Accused No. 1 alleged that he was permitted by the complainant in presence of two witnesses to give Accused No. 2 the photo card for publication.

The complainant contends that Accused No. 1 committed criminal misappropriation in respect of the photograph delivered to Accused No. 2 and that the latter committed the offence of receiving stolen property. The police magistrate ruled that neither of these offences were committed by the accused and directed that the complainant may find his remedy in the civil courts and this ruling was upheld by the judge of the High Court.

These two offences can only be committed in respect of movable property. The real complaint is that the complainant as a photographer has become known as producer of films so characteristic in their appearance that people identified them as his property and that the use of those films by Accused No. i infringed that right.

This may amount to a tort—a misrepresentation analogous to passing off, the remedy for which is in the civil courts.

I re-affirm the decision of the police magistrate and the judge of the High Court and I therefore see no reason to intervene