The fashion industry, and designers more generally, has received some welcome clarification of when clothing may attract protection under copyright law.

Until recently, under English law it was extremely difficult for fashion items (especially items of clothing) to benefit from copyright protection. Indeed, they could only be protected by copyright if they qualified as items of artistic craftsmanship, but since artistic craftsmanship did not extend to mass produced items, or items produced with the assistance of machinery, this was not viable for the vast majority of items. Instead, designers would seek to rely on registered or unregistered design rights which are significantly shorter in duration than copyright.

However, based on recent judgments from the High Court¹ and the Court of Justice of the European Union (“CJEU”)² it now appears that anything which has a degree of originality can benefit from copyright protection and national law cannot impose a requirement of aesthetic or artistic value in respect of copyright provisions. In addition, the use of machinery to create a product does not preclude said product from being categorised as a work of artistic craftsmanship and products which are mass produced may also still benefit from copyright protection.

Whilst these judgments are particularly useful for those operating within the fashion industry, the legal principles discussed in these judgments have a wider application for anyone seeking copyright protection.

Artistic Craftsmanship

It was established English law that artistic craftsmanship is work where the author is both a craftsman (i.e. someone who makes something in a skilful way and takes pride in their work) and an artist (i.e. someone with a creative ability who produces something which has aesthetic appeal).

Use of machinery

Previous English law judgments have suggested that the definition of craftsman requires the object to have been created by hand, without the assistance of machinery. The High Court rejected this definition in Response Clothing v EWM and noted that as there are many varieties and levels of machinery assistance, it is difficult to draw the line as to when the use of machinery results in the artist no longer creating a work of artistic craftsmanship. It was held in this case that the use of a knitting machine to incorporate a wave design in the fabric did not preclude the fabric from being a work of craftsmanship.

Mass production

Whilst Response Clothing v EWM did not consider the suggestion that mass produced products are not works of artistic craftsmanship in any significant detail, it was noted that earlier English case law comments do not give rise to a binding principle and consequently, the wave design fabric was found to be a work of artistic craftsmanship.

Aesthetic Appeal Requirement

What is a work?

Prior to Cofemel each member state applied its own test as to whether copyright protection applied. However, the Cofemel decision has provided an EU-wide test which states that a work will benefit from copyright protections if it is (1) something which was the author’s own intellectual creation and (2) is an expression of the author’s creation.

The first condition requires that the subject matter not merely be dictated by technical considerations and the second condition requires that the creation be expressed in a manner that is objective and is identifiable with enough precision.

As the second condition requires a sufficient level of precision and objectivity, it follows that aesthetic originality, a subjective quality, cannot be relied upon as a criterion to determine whether originality requirements are met. Consequently, the CJEU decision precludes national legislation from providing that copyright protection be based on aesthetic criteria. As a result, Cofemel renders English law (which requires aesthetic appeal) incompatible with EU law.

The High Court avoided having to consider the Cofemel implications in Response Clothing v EWM as it was found that, on the facts, the wave design fabric did have aesthetic appeal. Whilst the UK remains in the transition period, the Courts are obligated to follow EU law. However, we are yet to see what impact the Cofemel case will have on national law following the end of the transition period.

Can designs be protected by Copyright?

Providing a design is original and is an expression of the author’s intellectual creativity, it should also benefit from copyright protection and the longer protection periods.

However, the CJEU noted that care needs to be taken to ensure that the separate design and copyright provisions are not undermined and therefore stated that “concurrent protection can be envisaged only in certain situations”. This undoubtedly leaves a level of ambiguity as to when a design will also attract copyright protection and suggests a narrow interpretation may be taken. Those in the fashion industry should be alert for any developments which provide guidance on this point.

What does this mean for businesses?

Whilst these two cases are particularly useful for those in fashion, design businesses from other industries can also take guidance from these decisions. Designers should consider whether there is an element of originality in the designs which may also give rise to protection under copyright provisions thereby providing a longer period of protection. Further, the applicability of the copyright provisions appears to have been extended to include works which are created for mass production and those created with the assistance of machinery. This should result in significantly stronger rights for designers. We shall watch with interest to see whether there is a related increase in designers enforcing those rights.

Footnotes

1) Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148 (IPEC).

2) Cofemel – Sociedade de Vestuário SA v G-Star Raw CV (Case C-683/17).