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Increased Copyright Protection for Designers

The Patents County Court has found that a set of written instructions for a fabric design was protected by copyright not just as a literary work, but also as an artistic work. This decision will be of interest to people who design or produce fabrics and 2D decoration on clothes, soft furnishings and the like. It is now clear that copying the design (i.e. the end product) can infringe the copyright in any written instructions setting out how to make that design.

Background

The Claimant and the Defendants were rival producers of woollen fabric for upholstery and furnishing. The Claimant objected to the Defendants' woollen upholstery fabric, Spring Meadow, as it believed it to be a copy of one of its best-selling fabrics, Skye Sage. The patterns of the plaid designs were virtually identical and the colours used were very similar. The Defendants' Spring Meadow Fabric was being sold through John Lewis.

The Claimant alleged infringement of its copyright in the 'ticket stamp' for Skye Sage. A ticket stamp records, in words and numbers, the combinations and numbers of threads required to produce a particular fabric so that the production team can correctly set up the loom in order to produce the required designs. The Defendants disputed that copyright could subsist in the ticket stamp.

The Patents County Court Decision

The court found that, whilst the ticket stamp only comprised two pages of words and numbers, to an experienced fabric designer it had 'real visual significance', in that a designer could read a ticket stamp and visualise what the fabric looked like. It had been produced by someone who was sufficiently artistically skilled to record an image by a series of letters and numbers. There was therefore artistic copyright in the ticket stamp.

Because the Spring Meadow fabric was held to be a reproduction of the whole or a substantial part of the actual Skye Sage fabric, in turn it was held to be a reproduction of the whole or a substantial part of the artistic work represented by the ticket stamp.

Comment

The ticket stamp, consisting of words and numbers, would be protected by copyright as a literary work. However, simply making a fabric design in the style detailed in the ticket stamp did not infringe the copyright in that literary work, as there was no reproduction of the actual words and numbers in the ticket stamp – in the same way that baking a cake by following a recipe does not infringe the copyright in the words comprising the recipe. By deciding that the ticket stamp was also a graphic work, the court was able to find that the Defendants' fabric infringed the ticket stamp. The court stated that in deciding whether something is an artistic work, one must look at the content of the work and not the medium in which it was recorded.

For further information on the contents of this briefing, or for information about our IP services, please contact Suzanne Wiseberg.