Copyright and Design Right

Fashion is all around us. Whether an item of clothing, shoes, a handbag, or a scarf or an item of jewellery – they all start out as an idea.

To profit from copyright protection, your work must be “original” that is to say it must not be a copy of a pre-existing work and must involve independent skill and labour. However, the threshold for originality is generally a low one.

Copyright can be found in original literary or artistic works (s1(1)(a) of the Copyright Designs and Patents Act 1988 ‘CDPA’).

An “artistic work” means “a graphic work, photograph, sculpture or collage irrespective of artistic quality” (s4(1)(a)). “Graphic work” is given a partial definition in s4(2) as including “(a) any painting, drawing, diagram, map, chart or plan and (b) any engraving, etching, lithograph, woodcut or similar work”.

Artistic copyright is infringed by reproducing the whole or a substantial part of a work in a material form (s16 and s17 of the 1988 Act).

In Designers Guild v Russell Williams [2000] 1 WLR 2416, [2001] FSR 11 p113 Lord Millett said the following:

“The first step in an action for infringement of artistic copyright is to identify those features of the defendant’s design which the plaintiff alleges have been copied from the copyright work. The court undertakes a visual comparison of the two designs, noting the similarities and the differences.

The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence.

It is at this stage that similarities may be disregarded because they are commonplace, unoriginal, or consist of general ideas. If the plaintiff demonstrates sufficient similarity, not in the works as a whole but in the features which he alleges have been copied, and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying”.

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