Design Law and Artistic Copyright

The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown. If your design was an original product of your skill and labour then you can protect your copyright. However there is “there is no new thing under the sun”. You receive inspiration from elsewhere.

However the key question is was the design sufficiently original to earn copyright protection. Copyright subsists not in ideas but in the form in which the ideas are expressed. The distinction between expression and ideas finds a place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to which the United Kingdom is a party (see article 9.2: “Copyright protection shall extend to expressions and not to ideas…”). However this is dependent on what you mean by an idea. Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a “substantial part” of the work.

How much is to be copied for their to be an infringement is found in section 16 (3) of the Copyright Designs and Patents Act 1988 where it states to infringe an act must be done “in relation to the work as a whole or any substantial part of it”.

An action for infringement of artistic copyright is concerned with the its derivation. The copyright owner does not complain that the defendant’s work resembles his. His complaint is that the defendant has copied all or a substantial part of the copyright work. The reproduction may be exact or it may introduce deliberate variations – involving altered copying or colourable imitation as it is sometimes called. Even where the copying is exact the defendant may incorporate the copied features into a larger work much and perhaps most of which is original or derived from other sources. But while the copied features must be a substantial part of the copyright work, they need not form a substantial part of the defendant’s work. Thus the overall appearance of the defendant’s work may be very different from the copyright work. But it does not follow that the defendant’s work does not infringe the plaintiff’s copyright.

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.

So any judge would have to consider whether you had copied x’s work and if so was it a substantial part?

Any court would list the similarities of each design. The question as to how such similarities could have been made infer copying. The explanation as to copying is also important. Don’t lie or deny the obvious. It will come out at cross examination. He comes with clean hands is important also. Good guys and bad guys – make sure you are the good guys.

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