Copyright test for work of artistic craftsmanship explored

Out-Law News | 06 Feb 2020 | 9:42 am | 3 min. read

A recent ruling has confirmed differences exist in EU and UK copyright law on what qualifies as a work of copyright, an intellectual property law expert has said.

The High Court in London acknowledged that the concept of 'a work of artistic craftsmanship' under UK copyright laws only aligns with EU copyright law "up to a point". Iain Connor of Pinsent Masons, the law firm behind Out-Law, said it is an area of UK copyright law that could diverge completely from EU law after the current Brexit transition period expires.

The High Court reached that conclusion after considering the test for what constitutes 'a work of artistic craftsmanship' in dealing with a copyright dispute between clothes designer Response Clothing and clothes retailer Edinburgh Woollen Mill (EWM).

Response claimed it had been assigned the copyright to a wave pattern fabric design that featured in ladies tops which it had supplied to EWM. According to the High Court, EWM shared a sample of a top made from the wave fabric with rival suppliers in pursuit of a cheaper supply agreement, and subsequently contracted with different suppliers who supplied EWM with similar tops to those that Response supplied. Response claimed that EWM had infringed its copyright in the design.

However, EWM challenged whether Response's design could benefit from copyright. This prompted High Court judge Hacon to explore whether the wave design could be classed as a type of 'artistic work' under the UK's Copyright, Designs and Patents Act 1988 (CDPA).

'A work of artistic craftsmanship' is listed as a type of artistic work in which copyright can subsist under the CDPA. The term is not defined in the legislation, however, nor has it been in previous UK copyright laws since its first introduction in the Copyright Act 1911.

Judge Hacon reviewed UK case law in search of further explanation of the concept and a binding meaning for it. The judge also reflected on provisions contained in EU copyright law, and how they have been interpreted by the Court of Justice of the EU (CJEU), for clues on what the scope of 'a work of artistic craftsmanship' is.

The judge said that UK case law suggested the test for artistic craftsmanship would require him to assess whether the creator of Response's design was "a craftsman in that he or she made the fabric in a skilful way, taking justified pride in his workmanship and was an artist in that he or she used their creative ability to produce something which has aesthetic appeal".

However, the CJEU ruled last year in the so-called 'Cofemel' case that the specific artistic or aesthetic effect a design produces has no bearing on whether copyright applies to it. It said, classification as a 'work' of copyright under EU law is only possible if the object in question could be identified with sufficient precision and objectivity and if it further constitutes an intellectual creation reflecting the freedom of decision and the personality of its author.

EU and UK law is therefore not wholly aligned on the topic, judge Hacon said.

Connor Iain

Iain Connor


UK Supreme Court judges have been keen to maintain aesthetic appeal as a key component of copyright in certain circumstances

"Complete conformity … would exclude any requirement that the wave fabric has aesthetic appeal and thus would be inconsistent with the definition of work of artistic craftsmanship stated in [UK case law]," the judge said.

In light of the differences, the judge provided clarifications on what creations can qualify as a work of artistic craftsmanship in the UK.

He said: "It is possible for an author to make a work of artistic craftsmanship using a machine; aesthetic appeal can be of a nature which causes the work to appeal to potential customers and; a work is not precluded from being a work of artistic craftmanship solely because multiple copies of it are subsequently made and marketed."

Judge Hacon said that Response's wave fabric design qualified as a work of artistic craftsmanship and held that it also met the requirements for originality in the absence of evidence showing that its creator had been inspired by similar earlier-created designs. He was also satisfied that rights in the design had been assigned to Response. He concluded that EWM is liable for copyright infringement.

Iain Connor of Pinsent Masons said: "This leaves open the question of what happens now. The case law established in the Cofemel case is binding in the UK even post-Brexit, up until such time as the government elects to legislate otherwise. Will the UK courts feel bound to follow the EU case law or distinguish it going forwards? Will there be post-Brexit legislative intervention on this question? This could be an area in which UK and EU copyright law diverge especially in circumstances where the UK Supreme Court judges have been keen to maintain aesthetic appeal as a key component of copyright in certain circumstances; you only need to look at the Star Wars Stormtrooper Helmet case to see how highly they value this criterion."