Calling all designers: Are your iconic 3D works about to get back into full copyright? Intellectual Property Office issues guidance note 9 September 2016

The long awaited repeal to Section 52 of the Copyright Designs and Patents Act 1988 is due to take effect on 28^th October 2016. From that date 3D works which have been mass produced and in respect of which registered and/or unregistered design rights has expired may benefit from full copyright protection, which is the life of designer plus 70 years.

It is general assumed that iconic work will certainly benefit and the change in the law will do what designers intended – that is gives them the same protection that is granted to painters writers textile designers and others whose designs are 2D but that is not the case. A 2D work attracts copyright irrespective of the artist’s intention or any merit. For 3D design where the work must be judged to be a work of artistic craftsmanship by the court.

The Intellectual Property has published guidance on the relevant criteria to determine what would be considered a work of artistic craftsmanship. It makes interesting reading. There are very few reported legal cases on this topic and the guidance has been gleaned from things said by judges in no more than a handful of cases.

Here is what designers would need to establish their works as being of ‘artistic craftsmanship’

(i)                The work must combine both artistic quality and craftsmanship

(ii)              Artistic means real artistic quality and must be a work or art or fine art. It is not enough that it looks attractive. Whether something is artistic must be determined in light of evidence. This could include the intention of the maker to create a work of artistic craftsmanship; evidence of how ordinary member  of the public regard the work and whether the designer already has works in his name acknowledged to be artistic as well as the level of aesthetic appeal.

(iii)             Craftsmanship presupposes special skill knowledge or training.

(iv)             One factor which may be used in determining whether a work is a work of artistic craftsmanship is assessing the extent to which the work’s artistic expression is unconstrained by functional considerations.

From the above it is not difficult to see that in defending claims there is much scope for debate as to whether or not an item is a work of artistic craftsmanship. Consider some iconic works from the 50’s and 60’s which are popular again now and which were specifically intended to be utilitarian. There has to be a real question over whether such works would benefit from this change.

For other works where there is a real prospect the design would qualify as a work of artistic craftsmanship we would encourage designers to put together the design history including all drawings and sketches evidencing creation of the design. In addition in light of the relevance of what may have been in the mind of the designer when he created the design it would be prudent to prepare such a statement now for future use by a designer or his business in the fight against copyist.