Copyright Update: A Shift in the Tide?

The general position under UK copyright legislation is that artistic works are not protected by copyright unless they are

a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality;

b) a work of architecture being a building or a model for a building; or

c) a work of artistic craftsmanship.

Unhelpfully, the term "work of artistic craftsmanship" (WOAC) is not defined within the legislation, and it has been left up to the courts to determine its application.

In this short article, we will consider some recent case law developments which demonstrate a shift in the court adopting a much more flexible approach when determining what constitutes a WOAC.

The general principle laid down in previous English case law suggested that for an article to be considered a WOAC, it had to be a work of "craftsmanship" with aesthetic appeal, with "more" than just eye appeal, taking into account relevant considerations including the artistic intention of the creator and recognition by experts.

In the leading case of George Hensher Ltd v Restawile Upholstery (Lancs) Limited, it was suggested that hand-painted tiles, stained glass windows and wrought iron gates may qualify as WOAC, whereas mass-produced suites of furniture and simple machine-made garments may not since "artistic" quality is required for a work to qualify for copyright protection.

The issue was considered in Lucasfilm Limited and other v Andrew Ainsworth. The Supreme Court referred to the New Zealand High Court's decision in Bonz Group (Pty) Ltd v Cooke in which it was held that: 

"for a work to be regarded as one of artistic craftsmanship, it must be possible fairly to say that the author was both a craftsman and an artist. A craftsman is a person who makes something in a skilful way and takes justified pride in their workmanship. An artist is a person with creative ability who produces something which has aesthetic appeal". 

In Lucasfilm, it was held that making Stormtrooper helmets required the activity of a craftsman to realise the vision of the creators of the Star Wars films in which they featured. Therefore, they were works of craftsmanship but not artistic craftsmanship.

Their purpose was not to appeal to the aesthetic but rather to give a particular impression in a film. Lucasfilm established that for a work to be one of artistic craftsmanship:

a) Its creation requires skilful workmanship, and 

b) it must be artistic, such that there was creative ability that resulted in "aesthetic appeal".

In the case of Response Clothing Limited v The Edinburgh Woollen Mill Limited, it was held:

a) it is possible for an author to make a work of artistic craftsmanship using a machine;

b) aesthetic appeal can be of a nature which causes the work to appeal to potential customers; and

c) work is not excluded from being a WOAC solely because multiple copies of it are subsequently made and marketed.

The position is more complicated due to the recent EU copyright law, which was retained after Brexit.

In the 2019 decision of the Court of Justice in Cofemel v G-Star Raw, it was held that there are only two requirements necessary for establishing copyright protection:

a) the existence of an original object; and 

b) the expression of intellectual creation.

Crucially, an aesthetic appeal should no longer form part of the assessment of determining copyright for design articles.

That is a significant departure from the decision in the Hensher case (above). 

Further, in Brompton Bicycle v Chedech/Get2Get, it was held that a product whose shape is, at least in part, necessary to obtain a technical result might be protected by copyright where it is an original work resulting from the author's own intellectual creation.

The ECJ decisions in Cofemel and Brompton have been considered subsequently by the English courts in deciding whether articles are WOAC.

Despite that, Hensher continues to be the leading case, with aesthetic appeal being a key factor.

The above highlights a shift from a more rigid analysis adopted in Hensher towards a more flexible approach to copyright protection.

Moreover, if functional objects that are not artistic or have limited aesthetic appeal can attract copyright protection, which is the position according to Cofemel and Brompton, this could significantly widen the scope of copyright protection.

Businesses, specifically those in the product design spaces, will need to monitor this area closely to ensure they understand each new development, how this may affect their rights, and, more importantly, when those rights are being infringed.