General Hotel Management (Singapore) Pte Ltd and another v The Wave Studio Pte. Ltd. and others

Between 1995 and 2008 the General Hotel Management group (GHM), which managed luxury hotels, engaged Ms Lee Kar Yin and her businesses, referred to as Wave, as a one-stop provider of branding and marketing design for its hotels. There was no formal written contract. Wave issued a Production Estimate for each job, and these contained a clause reserving to Wave the intellectual property copyright in its work, including photographs. Hotel photoshoots formed part of the service; a photographer sub-contracted by Wave took most of the raw images, while Ms Lee directed the shoots and edited the results. Copyright in Wave's works was later assigned to The Wave Studio, LLC.

After the relationship ended, Ms Lee found that the hotel photographs had appeared on 242 instances in GHM's in-house publication, The Magazine. Wave sued two GHM companies in HC/S 175/2018. The High Court found that Wave owned the copyright, that there was no implied licence, and that both GHM companies infringed it, granting declarations, an injunction and delivery up. It also ordered indemnity costs because GHM had not accepted Wave's offer to settle. GHM appealed on liability in Civil Appeal No 12 of 2022 and on costs in Civil Appeal No 46 of 2022.

1. Whether the reservation clause excluded s 30(5) of the Copyright Act, so that Wave owned the copyright
2. Whether s 30(5) requires an agreement with the actual photographer and an agreement solely for taking photographs
3. Whether GHM had an implied licence to use the photographs for marketing
4. Whether the first GHM company was involved in The Magazine
5. Whether indemnity costs were properly ordered under the offer to settle

At trial GHM had argued only that the reservation clause was not incorporated, and lost on that point without appealing it. Its new argument on interpretation was unpleaded, contradicted by its own witnesses and correspondence acknowledging Wave's copyright, and leave was refused. In any event the clause plainly reserved copyright to Wave and was a contractual term, since the Production Estimates were offers accepted by GHM. Section 30(3) permits parties to exclude s 30(5), so Wave owned the copyright.

The court nonetheless disagreed with the judge on s 30(5). It refers to an agreement with another person, not the author, so no contract with the photographer himself is needed, and the agreement need not be only for photography, so long as taking photographs is part of it. Reading it otherwise would let a commissioned party defeat the client's rights by sub-contracting. Wang Choong Li v Wong Wan Chin [2015] 4 SLR 41 did not decide the point.

No implied licence arose. GHM did not attempt the Sembcorp Marine test, and an implied term would contradict the express reservation; a later comparison with another photographer's prices was irrelevant. The Magazine named the first GHM company as publisher, the two companies' operations overlapped, and the adverse inference for not calling GHM's president was justified.

On costs, the offer to settle was serious and genuine because it waived damages. But it required GHM to admit that it and others it had acted for had no defences to infringement, which the court could never have ordered. The judgment was therefore less favourable than the offer, and standard costs applied.

The Appellate Division dismissed the appeal on liability but allowed the appeal on costs. Costs below were revised from $300,000 to $200,000 plus disbursements on the standard basis. GHM was ordered to pay net costs of $45,000 for both appeals, and Wave to refund any excess costs it had retained.