THE DECORATIVE ARTS AND COPYRIGHT
Edmund Eldergill, Barrister-at-Law, 1 Pump Court Chambers, Middle Temple
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This article is offered as a general guide to the issues surrounding copyright and design rights in this area. It does not represent an exhaustive account and has been edited to simplify the legal issued involved and make it a readable length for the interested lay person. It is not intended to offer legal advice and should not be relied upon as such either in general or as to any specific case that the reader may be researching or seeking guidance on. We strongly recommend you seek specialist advice for any specific circumstances.
Under the law of the United Kingdom the period of copyright protection for an artistic work is the life of the creator plus 70 years, but section 52 of the Copyright Designs and Patents Act 1988 effectively limits the copyright period for artistic works that are mass-produced “works of artistic craftsmanship” by an industrial process to just 25 years from the date when a product is first marketed. Designers and manufacturers of decorative arts that would still be in copyright but for this exception have long campaigned for equal treatment with other creative artists.
The current legal situation is discriminatory, but may shortly be ended. Vince Cable, M.P. for Twickenham, has introduced into Parliament the Enterprise and Regulatory Reform Bill (“the Bill”). The Bill has now reached the Report Stage and is expected to become law in late 2012 or early 2013. Section 56(2) of the Bill provides that section 52 of the Copyright Designs and Patents Act 1988 shall be omitted. If section 52 is indeed repealed then mass produced works of artistic craftsmanship would enjoy the same copyright period as any other artistic work.
Such a change would have a significant impact on the decorative arts industry of the United Kingdom. The terms “decorative arts” must be contrasted with “fine arts”. “Fine arts” comprises those art forms that have no functional use, such as painting and sculpture. Art forms such as pottery, wallpaper and furniture are utilitarian and as a group form the decorative arts. Currently, decorative works can either have the full protection of copyright law of the life of the creator plus 70 years, a restricted period of 25 years if they are mass produced works of “artistic craftsmanship” or between 10 and 25 years if they are simply designs that attract a lower class of legal protection from copying called, unsurprisingly, design rights.
The relevance of the proposed change in the law will be more apparent by looking at just one area of the decorative arts and that selected is furniture. The present and proposed legal principles that prevent or permit the unlicensed copying of furniture apply equally to all areas of the decorative arts though. Furniture is selected because that industry has been the driving force of behind the present campaign to change the law and I have decided to look specifically at the famous Egg Chair designed by Arne Jacobsen.
The key legal question is whether the Egg Chair should be legally defined as an artistic work that will become eligible for additional copyright protection as a result of the proposed change in the law or as simply a work of design, in which case there is no copyright to revive? The term “artistic work” is defined by section 4 of the Copyright Designs and Patents Act 1988. The only part of the definition relevant to the decorative arts is section 4(1)(c). This provides that “an artistic work” includes “a work of artistic craftsmanship”.
As a general principle, decorative arts that are intended to appeal to the purchasing public are not considered artistic if they are devoid of extraordinary features even if they display craftsmanship. The maker of a pot, candlestick or lamp that is industrially mass produced must show that he has used skill, taste and original thought in creating the work that appeals to the artistic sensibilities of a viewer and not simply their aesthetic taste. If a work is utilitarian in nature, rather than an example of the fine arts that serves no practical function, then to qualify as an artistic work will require the mass produced product to display a greater degree of artistry than the law would require from a painting, sculpture or novel.
A design, in contrast to an artistic work, is perceived by the law to be worthy only of limited protection against unlicensed reproduction and this limited protection takes the form of what are called “design rights”. Such rights can be registered or unregistered design rights and not all three dimensional objects are capable of registration. Unregistered design rights within the UK have a duration of 10 years from the end of the year in which the design was developed into a marketable product with a maximum period of 5 years allowed to bring it to market. A registered design is administered in the UK by the Intellectual Property Office and benefits from 25 years of protection.
Registered design rights, therefore, have an identical period of protection of 25 years from unlicensed copying as the restricted copyright period provided for mass produced artistic works by section 52 of the Copyright Designs and Patents Act 1988. It has never been decided by the courts in the United Kingdom whether the Egg Chair or any other piece of iconic 20th century furniture is to be classified as a design or an artistic work and that would become the critical question if the proposed repeal becomes law: a mass produced item of furniture will only have its copyright period revived and extended to the life of the creator plus 70 years if, in any action for infringement, the courts of the United Kingdom agree that the item of furniture is an “artistic work” and not simply a furniture design. Furthermore, this observation is of general application to all works of decorative art of whatever type: the product in question must be capable of being described as an artistic work. As we have seen, decorative arts under the legislation can only come within the definition of “artistic work” if they fall within the scope of one of the sub-categories of artistic works, namely “works of artistic craftsmanship”.
The leading case on the interpretation of a “work of artistic craftsmanship” is the House of Lord case of George Hensher Ltd v Restawile Upholstery (Lancs) Ltd  AC 64 and, fortunately, it involved furniture. However, this case is equally relevant to any decorative work of art. The House of Lords has now been replaced by the Supreme Court as the highest court in England and Wales, but its decisions are still binding on all inferior courts, including those of the Court of Appeal. Although the Copyright Designs and Patents Act 1988 had not yet come into force when this case was heard copyright legislation had, since the Copyright Act 1911, defined a work of art as including a “work of artistic craftsmanship” and section 3 (1) (c) of the Copyright Act of 1956 used identical wording in all material respects.
The brief facts of the case were that Hensher manufactured furniture deploying a boat-shaped theme. These designs were described by expert witnesses as ‘ﬂashy’ and ‘slightly vulgar’ as well as using various other uncomplimentary terms. Nevertheless, the designs appealed to the market and were commercially successful. Restawile Upholstery Ltd. then produced a range of similar designs and Hensher sued for infringement of copyright, relying on alleged breaches of the original three-dimensional design prototype on the ground that the prototype was a work of craftsmanship rather than “artistic craftsmanship”. It was Hensher’s case that artistic quality was not necessary for protection, that the word ‘artistic’ added nothing meaningful to “craftsmanship” and, consequently, that the prototype fell within the scope of copyright protection. The Court of Appeal had ruled against Hensher and the House of Lords reached the same decision in holding that the prototype was not a “work of artistic craftsmanship” and, therefore, not within the definition of an artistic work protected by copyright law.
All is straightforward until we examine the reasons why the 5 Law Lords reached their unanimous decision. Disconcertingly, we discover that they all essentially gave a different test when determining what is and is not a work of “artistic craftsmanship”. Further, those 5 tests were distinct from the ones given by 3 Court of Appeal judges as well as the original trial judge. In fact, 9 judges had formulated the correct test and all differed to a greater or lesser degree.
Lord Kilbrandon’s opinion in the House of Lords has stood up better than most to the test of time and his formulation of the correct test was whether the intention of the creator of the work was to produce a work of art or not. “In my opinion, the first essential of a work of art (which I think an artistic work must be) if it is to be distinguished from a work of craftsmanship - a distinction upon which Parliament insists - is that it shall have come into existence as the product of an author who is consciously concerned to produce a work of art.”
This test has its appeal: it would avoid aesthetic arguments as to artistic merit and it would not generally be difficult to distinguish between a work whose creation was primarily inspired by the artistic impulse from that motivated by commercial factors associated with industrial production.
As the years have rolled on, the opinion expressed that has perhaps attracted the greatest approval is that of Lord Simon. In his opinion the words “artistic craftsmanship” were not to be read separately, but as a phrase that derived its meaning from the Arts and Crafts movement that sprung up in the late Victorian period: “For the essence of the Arts and Crafts ideology was that ‘art’ did not mean, merely, or, even primarily, the fine arts. Art was a way of life, standing in contrast to the prevailing industrialism and commercialism, which was seen as a threat to mankind’s spiritual and physical well-being ….”
As Lord Simon identified, there had been a lacuna in the legal protection for works produced by the Arts and Crafts movement. They were not ‘fine arts’ protected by copyright, but they were the antithesis of the mass produced manufactured goods that had the limited protection of design or patent law. Lord Simon plausibly suggested that the Copyright Act 1911 had been the remedy to a perceived legal injustice through its extension of the definition of a work of art to “works of artistic craftsmanship”.
Having laid this foundation, Lord Simon posited that the correct question to ask when determining whether a work had copyright protection as a “work of artistic craftsmanship” was whether the work was produced by a person capable of being characterised as an artist-craftsman. The artistic merit of the work was not an issue to be considered. The best evidence that could usually be made available to the court would be that of acknowledged artist-craftsmen or those training artist-craftsmen.
Lord Reid’s test has the advantage of ensuring that the type of works which the legislature intended to protect will come within the scope of ‘works of artistic craftsmanship’.
It is worth noting that the, at first sight, plausible and attractive test that an evaluation of the artistic merit of the work should be undertaken when deciding whether a work could fall within the scope of “a work of artistic craftsmanship” is unworkable. This test has neither been approved of in later case law nor found favour with legal commentators. Lord Reid himself identified its fundamental impracticality when he stated in Hensher that “Parliament can hardly have intended that the construction of its statutory phrase should turn on some recondite theory of aesthetics.”
Despite his own test, Lord Reid accepted that whether or not the creator of a work had an artistic motive was an important factor to be taken into account and that much is common sense. If a company produces a pot with aesthetic appeal intending for sale through retail stores to the masses then it will almost certainly lack the required artistic motive in crafting it that may be ascribed to a pot made by Bernard Leach and designed for exhibition. Combining all that has been said above, we can theorise that for a decorative work to exhibit artistic craftsmanship would usually require it to have been created with the intention of making a work of art, to display artistry in its crafting worthy of the term “artistic craftsmanship” and for the object to be recognised by leading artist-craftsmen in the area as having been made by an artist-craftsman.
One is left with the impression that to qualify as an artist-craftsman unfairly favours the bespoke, furniture maker or studio potter producing individually commissioned pieces or very small numbers at very high prices over the designer of furniture or pottery who gets his hands dirty in industrial design and descends into the manufacturing world of mass production and the marketing of utilitarian products. The sofa or bowl designed to aesthetically appeal to the public in order to maximise sales is not art enough and not to be considered a work of artistic craftsmanship unless some original design features are present. Utility, low cost, high production numbers, economies of scale, resultant profit may all be features that in practice count against specific items of furniture design being perceived by the courts of England and Wales to be works of artistic craftsmanship.
Though the precise test for determining “artistic craftsmanship” may be unclear it is apparent from the lack of case law declaring utilitarian designs to be works of artistic craftsmanship that relatively few designs in the decorative arts industry are likely to be honoured with the status of works of artistic craftsmanship by the courts. For that reason, the repeal of section 52 may actually be a sheep in wolf’s clothing. I suspect many of the large companies that own the currently expired copyright in iconic furniture designs have the financial muscle and legal teams to intimidate the smaller importers and retailers of cheap Far Eastern copies into removing from sale those product lines once the proposed change is enacted.
Any retailer who looks twice at the wolf may notice that he is in fact a sheep. While every case is fact specific, the retailer may have persuasive arguments to support a successful defence at any trial that the product in question is not a work of artistic craftsmanship at all but a design whose period of protection as a registered or unregistered design has long since expired. After all, the Egg Chair was not born an icon. Collectable decorative art pieces will commonly have started life as products designed by large companies for the retail industry or under other circumstances that could conceivably fail the test of artistic craftsmanship. Arne Jacobsen designed the Egg Chair as part of an assignment to design what has been called "the world's first designer hotel" when the SAS Royal Hotel commissioned him to build it in the mid-1950s. Jacobsen was an architect as well as designer and designed everything from the building and its furniture and fittings to the ashtrays sold in the souvenir shop and the airport buses. Any judge adopting Lord Kilbrandon’s test that a creator must consciously have intended to produce a work of art might conclude that the scale of the project, the reality of the chair being designed to complement a hotel style and the commercial profit motive inherent in such a large commission by a corporate body as incompatible with the object of creating an artistic work.
Alternatively, any judge favouring Lord Simon’s test, who looks at the historical context of the SAS Royal Hotel commission, could plausibly observe more than a bit of industrialism and commercialism in the project and identify the key skills employed as those of the architect-designer rather than artist-craftsman. The Egg Chair may yet be the centrepiece in any litigation and we shall then know the answer to the question of whether this iconic piece of 20th century furniture is indeed a work of art or design.
If this Bill becomes law without any significant amendments then designers of popular decorative pieces will benefit if they are able to bring their designs within the scope of the phrase “works of artistic craftsmanship”. The number of such products is likely to be relatively small though. In respect of the Egg Chair, its continuing sale by UK retailers would become an infringement of copyright if it were declared to be an “artistic work” in any future legal case to determine the issue. Until such time if ever that the court declares the Egg Chair to be an artistic work then the only additional protection that Fritz Hansen gains – they own the currently expired copyright in the Egg Chair – is to get their lawyers to write bullish letters to the makers of replicas asserting their belief that an infringement of their copyright is being committed and threatening to sue. Most designers of decorative arts products will lack the economic and legal muscle of an international company, however, and they may find their assertion of revived copyright protection less intimidatory and effective.
It is difficult to see the intellectual justification for section 52, but even more to see valid arguments to support the distinction in the law of the United Kingdom between art and design. This discrepancy seems to go back to times when a condescending distinction was drawn between the fine arts, such as paintings, writing and sculpture, and the decorative arts, such as furniture, wallpaper, pottery and so on. A gentleman of independent means did not wish to appear to be associated with commercial activity unless someone drew the impertinent conclusion that he needed to earn a living. Nowadays, things should be different, but this distinction between the fine and decorative arts survives the repeal of the section 52, which will only have the effect of abolishing the shorter copyright period of 25 years that applies at the present time to mass produced works of artistic craftsmanship. The repeal does nothing to abolish the greater discrimination in the law that causes beautiful works of industrial design to invariably attract a maximum 25 year period of protection from unlicensed copying, but automatically extends to the “flashy” novel or “slightly vulgar” sculpture a copyright term of the life of the creator and 70 years, despite their relative lack of artistic merit.
 Section 12(2) Copyright Designs and Patents Act 1988.
 Ibid section 52(2) and Article 2 of the Copyright (Industrial Process and Excluded Articles)(No. 2) Order 1989. Mass produced here is used to mean the production of more than 50 copies.
 Enterprise and Regulatory Reform Bill : http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0061/13061.pdf
 See Section 6 of the Impact Assessment Report of the Intellectual Property Office dated 15th May 2012.
 Hensher P96 per Ld. Kilbrandon.
 Hensher P89 per Ld. Simon.
 Hensher P95 per Ld. Simon.