Making mass produced products protectable by copyright

The High Court has recently set out a new test and some helpful guidance as to whether 3D objects are protected by copyright as works of artistic craftsmanship. The upshot of this decision is that it will now be easier for mass produced items, such as furniture, to be protected by copyright law as works of artistic craftsmanship.

Historically for 3D objects to be protected by copyright, the object had to either qualify as a sculpture or a work of artistic craftsmanship.  Both these requirements set the bar relatively high for copyright protection, albeit for different reasons.  Most 3D mass produced items will not qualify as sculptures.  Whilst, a previous House of Lords authority, where all five Law Lords disagreed on the requirements a work had to meet to be protected as a work of artistic craftsmanship, had been interpreted by lawyers as setting the bar high for a work to qualify for copyright protection as a work of artistic craftsmanship.

Fortunately in Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC148 (IPEC) , where the High Court was asked to rule on whether a fabric design was protected by copyright as a work of artistic craftsmanship,  the High Court explained that the previous House of Lords authority did not bind it because the Law Lords did not agree on anything.

With the House of Lords authority sidelined, the High Court set out the following pragmatic requirements and guidance for a work to be protected by copyright as a work of artistic craftsmanship:

 Test

1. The author of the work has to be both an artist and a craftsman
2. A craftsman is someone who makes something in a skilful way and takes justified pride in his workmanship
3. An artist is someone with creative ability who produces something which has aesthetic appeal

 Guidance

1. The craftsman and artist do not need to be the same person provided there is a close nexus between them
2. The work can be made by the author using a machine
3. Aesthetic appeal can be of a nature which causes the work to appeal to potential customers
4. The work will not be precluded from copyright protection because multiple copies are made and marketed

The High Court then followed its new test and guidance to find that the fabric design was protected by copyright as a work of artistic craftsmanship.

Comment

As the High Court reached this decision without following recent EU law this decision is Brexit proof.  However, it is likely to be appealed to the Court of Appeal as it involves a novel interpretation of existing UK laws.  That said, the Court of Appeal (the court that will hear the appeal) will have a hard time setting more onerous requirements for copyright protection given a recent Court of Justice of the European Union decision (which we blogged on in October) which lowers the requirements for copyright protection for 3D items.

In the meantime, the decision should be welcomed as it makes it easier to protect 3D mass produced items which as recent design decisions (Magmatic Limited v PMS International Group Plc [2016] UKSC12) and trade mark decisions (The London Taxi Corporation Limited v Frazer-Nash Research Ltd [2017] EWCA Civ 1729) have shown are not the easiest products to protect with intellectual property.

The decision is also welcome as it shows that the courts do not believe that copyright protection should only be the remit of works of fine art or objects displayed at museums but may include everyday items, such as fabrics.

Written by Ramsay Monime, Solicitor