Artistic Works - Term Paper Example

Whether something is or is not artistic is a question of fact to be decided in light of evidence, and it is pointless to try and expound the meaning of the word” Per Lord Morris in George Hensher Limited v Restawhile Upholstery Limited. Discuss. The relevant statutory framework for copyright protection in the UK is the Copyright, Designs and Patents Act 1988 (CDPA) and it is important to mention at the outset that “ideas” are not protected per se1 and the relevant consideration is whether the idea itself is embodied in the specified categories of “works” as defined by the CDPA2. Section 1(1) of the CDPA sets out the types of “works,” which attract copyright protection. This includes “original literary, dramatic, musical or artistic works3” and section 4(1)(c) includes “artistic craftsmanship” within the definition of “Artistic Works”. Moreover, once original work is created, copyright exists without any requirement for registration4. Copyright is also simultaneously created worldwide irrespective of the where the act of creation took place5. However, the content will not be protected per se as copyright law requires that the works must be original6. With regard to copyright law, the definition of originality does not have it ordinary dictionary definition and the “courts have interpreted the concept very loosely”7. For example, in the case of Ladbroke (Football) Ltd v William Hill (Football) Limited8 it was asserted that term “original” in context of copyright law “only required that the work should not be copied but originate from the author”9. Furthermore, the courts have looked to whether a substantial amount of work or effort was expended in creating the work in determining originality. This was propounded in the case of Macmillan & Co v K & J Cooper10 where it was stipulated that the basic foundation for attracting copyright protection was that a reasonable amount of work involving judgement and selection had been utilised in creating the work. However, the artistic craftsmanship category of works protected under the law has created problems in practice and Bainbridge argues that “works of artistic craftsmanship give rise to the greatest difficulty among artistic works11” for the purpose of copyright protection. Moreover, Bainbridge highlights the point that whilst there may be an assumption that certain goods such as jewellery, designer goods, furniture and clothing will come within the definition of artistic craftsmanship for the purpose of copyright protection, other goods of commercial value, whose artistic status is ambiguous have created problems for the judiciary in addressing copyright protection for artistic craftsmanship. For example, in the leading case of George Hensher Limited v Restawhile Upholstery Limited12, this concerned a prototype made for a suite of furniture described as boat shaped. The House of Lords held that a prototype was not a work of artistic craftsmanship and that for something to fall in this category it must in addition to being a work of craftsmanship satisfy the artistic quality. However none of the lordships were able to lay down a test for artistic quality but agreed that the work must be viewed in an objective manner, thereby perpetuating legal uncertainty in this area. In particular, Lord Morris was against trying to find an all encompassing definition for “artistic” in this context and asserted that question was one of fact and evidence and expert evidence was particularly important. On the one hand, the significant types of work potentially covered by the artistic craftsmanship umbrella necessarily require such an approach. On the other hand, the disparity in the judicial reasoning in the Hensher case has perpetuated legal uncertainty, which remains unresolved when addressing works of artistic craftsmanship in copyright law. This is further evidenced if we consider the differing judicial approaches in the Hensher case itself. Firstly, Lord Reid asserted that a work of artistic craftsmanship would have the necessary quality of “artistic” if a substantial section of the public admired and value the thing for its appearance even if others thought it common. Interestingly Lord Reid and Kilbrandon considered that the intention of the maker of the article was an important but not conclusive issue. On the other hand, Viscount Dilhorne considered that mass produced articles could not be works of artistic craftsmanship and Lord Simon of Glaisdale argued that the word “artistic” was not incompatible with machine production. However, in the Hensher case the claim of copyright infringement concerned the appellant’s prototype and not the furniture made from it and therefore the central obstacle for copyright protection was that the appellant was unable to convince the court that the prototype was in any sense artistic13. It was likely that the design of the mock up chair would have been accepted and protected under design right protection however this will not always provide sufficient protection for the product made from the design. As such, Bainbridge argues that the respondent took unfair advantage of the House of Lords’ decision in Hensher and that the decision is difficult to reconcile with Peterson’s J’s dictum regarding the purpose of copyright protection in the case of University London Press Limited v University Tutorial Press Limited14 that “a thing worth copying is worth protecting”15. Moreover, whilst Lord Morris’ assertion that “whether something is or is not artistic is a question of fact to be decided in light of evidence, and it is pointless to try and expound the meaning of the word” is clearly pragmatic in ensuring that a restrictive approach is not taken to works meriting copyright protection, the practical result of the Hensher decision has arguably created a predilection towards negating copyright protection for artistic craftsmanship due to the focus on the word “artistic”. As such, the Hensher case did nothing to clarify the meaning of artistic craftsmanship and whiles items such as Chippendale chairs and hand crafted jewellery will most likely come within the definition, the decision has been severely criticised for leaving other mass produced works vulnerable even though they attract significant commercial investment and risk, with insufficient support provided for the alternative design right protection16. This is further compounded by the fact that design right protection requires the higher standard of “novelty” for protection as an intellectual property right17. To this end Bainbridge comments that “for once the pragmatic and commercially sound approach of copyright law founders on the rock of taste, and one might ask why atrocious or feeble paintings and sculptures are protected by copyright law while other things such as furniture with proven visual appeal fail to attract protection and why the Hensher principles were not discarded by the CDPA”18. As such the issues raised in the Hensher remain unresolved regarding an appropriate definition of artistic craftsmanship and it further begs the question as to what the appropriate test should be when considering protection of works under the artistic craftsmanship umbrella19. Firstly, if we compare with the US position, “works of artistic craftsmanship are defined insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article… shall be considered a copyrightable work, only if and to the extent that such design incorporates pictorial, graphic or sculptural features that can be identified separately from, and are being capable of existing independently of, the utilitarian aspects of the article”20. Robert Denicola has posited that the creator’s intent and process that they used should be imperative as a starting platform from which to consider the boundary for works of artistic craftsmanship under copyright21. In propounding this argument, Denicola comments that “copyrightability…. Should turn on the relationship between the proffered work and the process of industrial design. Because the dominant characteristic of industrial design is the influence of the non-aesthetic, utilitarian concerns, copyrightability ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations.22” To this end, Denicola further extrapolates that separability should be defined by the creator’s vision and intention in creating the work, which has distinct parallels with Croce’s theorem regarding art as the embodiment of intuition23. In doing so, Croce’s pragmatic theory further propounds that “Artisans who think a chair looks wrong and fiddle with it until they can say “that’s it” are doing something continuous with what the greatest artist does. Workers who simply churn out MFI furniture pattern aren’t in some full sense active at all.24” Rushton argues that Lord Kilbrandon’s argument in Hensher is closest to Denicola’s propositions where he comments “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.25” Lord Kilbrandon further made the claim that “the conscious intention of the craftsman will be the primary test of whether the product is artistic or not26”. As such, this test is rooted in the idea of circumventing the need for judicial evaluation of the merit of the object in question and focuses on the maker’s intent “it has been said that the courts will be reluctant to make aesthetic appreciations, and that is right, not because so to do is for a judge difficult or unseemly but because it is a decision which in this context is not required”27. The issue of artistic craftsmanship was again considered in the case of Merlet v Mothercare plc28 where Walton J in applying Hensher held that the prototype cape for a baby called a “Raincosy” did not constitute a copyright protected work of artistic craftsmanship as there was no aesthetic quality. Additionally in the Merlet case, Walton J divided the concept of artistic craftsmanship into parts: “there are obviously two elements, the craftsmanship and the artistic nature of that craftsmanship, which are bound up together in the phrase “artistic craftsmanship29”. In addressing the creator’s intent, it was determined that “if the intention was to create a work of art and he has not manifestly failed in that intent, that is all that is required… but of course he may have manifestly failed in his object and his own intention cannot therefore be the sole, although it is the predominant test”30. Accordingly, the craftsmanship element clearly appears to be redundant according to the judicial focus on “artistic”. Indeed, Walton J concurred with Lord Kilbrandon’s sentiments in Hensher that the work object itself must be a work of art. In reaching the decision in the Merlet case, Walton J further referred to the fact that the artistic aspect had to matter more “it would be extremely difficult, if not totally impossible to submit that any substantial section of the public would value the Raincosy for its appearance or get pleasure or satisfaction whether emotional or intellectual from looking at it31”. Walton further relied on the decision in Burke and Margot Limited v Spicer Dress Designs32, where it was held that “artist craftsmanship” must be first “artistic” and the work had to satisfy this requirement first. However, Booton argues that the intention of the creator is paramount and that Lord Kilbrandon’s view was correct on this point in Hensher33. “Lord Kilbrandon was essentially correct in arguing that the conscious intention of the craftsman should form the basis of any determination of artistry. Only if the craftsman intended to produce an artistic work can it reasonably be argued that, in producing the work, he engaged in artistic craftsmanship”. (39). Booton’s rationale for this is that the CDPA expressly requires the craftsmanship to be artistic and not the work itself, which has clearly been obfuscated in judicial determinations. Indeed, the opportunity to clarify this was missed in the Merlet case with the focus on “artistic”. As such, under the current position the issue of whether a work is artistic is essentially determinant to whether or not the work is of artistic craftsmanship for the purpose of copyright protection34. If we compare this with the US position, Denicola’s justification for attaching importance to the creator’s intent in establishing separability is that it relates to the creative intuition and “model emphasising the influence of utilitarian factors frees the judicial analysis from its unfortunate fixation on appearance alone35”, which arguably is the overriding intention of the CDPA in providing for this category of works as amenable to copyright protection. Moreover, the inherent ambiguity and subjectivity of what is considered “artistic” further highlights the dangers and problems of Lord Morris’ assertion that “whether something is or is not artistic is a question of fact to be decided in light of evidence, and it is pointless to try and expound the meaning of the word”. This is further evidenced by the differences in judicial reasoning in the Hensher case. For example, Lord Kilbrandon argued that in considering the term “artistic”: “since the word is a word of common speech, it requires, and permits of, no interpretation by experts. It is for the judge to determine whether the object falls within the scope of the common meaning of the word”36. However, this is argument is clearly circular and indeed Booton highlights the weakness of this point and suggests that referring to the common meaning of the word does little to assist in the determination of its meaning37. Moreover, it would appear that consideration of “common usage” of the word is arguably part of the problem of pinning down a suitable approach to artistic craftsmanship as it creates subjectivity in what constitutes “artistic” which further lends support to the arguments that the creator’s intention in creating the work should be paramount when considering this category of works in copyright protection claims. Indeed, if we consider by analogy the Canadian legal position, which akin to the UK implements a system of copyright protection for works of artistic craftsmanship38; in the leading case of Cuisenaire v South West Imports Limited39 similar to the Hensher decision, in considering artistic craftsmanship Noel J asserted that “an artistic work… must to some degree at least, be a work that is intended to have an appeal to the aesthetic senses not just an incidental appeal, such as here, but as an important or one of the important objects for which the work is brought into being”40. In considering the aesthetic element in Hensher, Lord Reid further considered whether the creation should have appeal to the public and that there are differences in what the public would consider to be artistic41. To this end, Booton further submits that “of all the definitions of artistic work” suggested in Hensher, only Lord Reid put forward a workable test, consistent with legal principles”42, namely the intention of the creator in the first instance and the public perception of the work. However, Polakovic whilst accepting the merits of a two stage test as extrapolated by Lord Reid, highlights the practical problems of consistent implementation in copyright protection: “it is by no means a truism that the motivations that lead to pictorial, graphic or sculptural work without an intrinsic utilitarian function are all different from those leading to the creation of a useful article43”. On this basis, Polakovic puts forwards an objective test for determining whether something is a work of artistic craftsmanship, which requires satisfaction of whether a “person skilled in the art” would find the work beautiful44, which arguably readdresses the current imbalance between artistic and craftsmanship in the approach to this category of works in copyright law. Indeed, Lord Simon in the Hensher case stated that reference to whether work was artistic was the wrong question and “that the statutory phrase is not artistic work of craftsmanship but work of “artistic craftsmanship”…. This distinction accords with the social situation in which Parliament was providing a remedy”.45 Somewhat ironically the Hensher decision addressed all possibilities for evaluating works of artistic craftsmanship in copyright protection, however paradoxically there remains uncertainty and inconsistency with the appropriate approach remaining unresolved. Whilst Lord Morris’ assertion that whether or not something is artistic should be determined on the facts of each case is arguably necessary to ensure copyright protection remains relevant with evolving art forms, the judicial interpretation of the case by case approach has been to focus on the definition of “artistic” and ignore the craftsmanship element, which as Lord Simon points out clearly ignores Parliament’s intention. Moreover, Kearns argues that whilst the judges attempted to achieve a definition and legal certainty, “unfortunately for legal purposes at least…. the word artistic cannot be confined exhaustively by other verbal formulae…. The law ignores this complex human process intrinsic to the discernment of the artistic, and prior to the application of the word artistic because its desire is understandably a clarity of terms per se for its own purpose46”. As such, the essential problem of identifying whether something is artistic even with the use of an expert under an objective test is that in any event, the decision will hinge on subjectivity. Furthermore, the inherently topic of what constitutes “art” clearly compounds the problem of finding an appropriate test within a legal framework. Nevertheless, it is submitted that Lord Morris’ comments in the Hensher case clearly swing the pendulum too far against copyright protection for this category of works and a balance needs to be struck to ensure Parliament’s intention. BIBLIOGRAPHY Bainbridge (2007) Intellectual Property, Pearson Longman. Bently & Brad Sherman (2003). Intellectual Property Law. 4th Edition Oxford University Press. Blackstone’s Statutes on Intellectual Property Law (2007) 9th Edition Oxford University Press. Booton (1996). Legal Determinations of Artistic Merit under United Kingdom Copyright Law. 1 Art Antiquity Law 125. Cornish and Llewellyn (2003). Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights 5th edition Oxford University Press. Jennifer Davis (2007). Intellectual Property Law. 3rd Edition 2007 Oxford University Press Denicola (1983). Applied Art and Industrial Design: A suggested Approach to Copyright Protection in Useful Articles. 67 Minnesota Law Review. 707. Hollyoak and Torremans (2005). Intellectual Property Law. 4th Edition Oxford University Press. H Macqueen, C Waelde, & G Laurie (2007). Contemporary Intellectual Property. Oxford University Press. Merges, Menell & Lemley (2003). Intellectual Property in the New Technological Age. Aspen Polakovic (1993). Should the Bauhaus be in the Copyright Doghouse? Rethinking Conceptual Separability. 64 University of Colorado Law Review 871. Michael Rushton (2000). Economics and Copyright in Works of Artistic Craftsmanship. Available at www.law.ed.ac.uk/ahrc/files/76_rushtoneconomicscopyright00.pdf Accessed on 19th and 20th March 2009. Vaver & Bentley (2004). Intellectual Property in the New Millennium. Cambridge University Press. The Copyright Designs and Patents Act 1988 Read More