Goodbye Section 52? Proposed copyright extension for industrially produced designs

The iconic Eames chair
will it soon be protected by copyright?

What is art? What is design? Are the two different? Where is the overlap?

These are important and difficult questions which have plagued lawyers, judges and legislators in many jurisdictions not least the United Kingdom. There is currently a Bill passing through the UK parliament which will shake up the current UK approach to copyright for some designs and brings the UK system more in line with the approach taken in the rest of Europe.

Currently section 52 of the Copyright Designs and Patents Act 1988 (CDPA) limits the effective term* of copyright protection to ‘the end of the period of 25 years from the end of the calendar year in which such articles are first marketed’. This limited 25 year copyright term applies where an artistic work has been exploited (by the copyright owner) by making the artistic work by an ‘industrial process’ and marketing the artistic work in the UK or elsewhere.

A number of the gaping holes in section 52 were filled by the snappily titled Copyright (Industrial Process and Excluded Articles)(No. 2) Order 1989. This clarified that an ‘industrial process’ means either (1) the artistic work is manufactured more than 50 times or (2) it consists of ‘goods manufactured in lengths or pieces, not being hand-made goods’. So most furniture, lamps, storm trooper helmets etc are out unless...

...even if made by an industrial process, some items can slip through the section 52 net and get the full copyright term of protection. These special items are: works of sculpture, wall plaques, medals and medallions or printed matter primarily of a literary or artistic character. Unsurprisingly most of the legal battles have been over whether a particular design is a ‘sculpture’. But such battles may no longer be necessary.

[* Technically, the copyright term is not limited but the ability to take action against infringers is removed which is effectively the same thing subject to limited circumstances which are discussed in more detail here.]

The plan is simple: revoke section 52 (see clause 55 of the proposed bill).

How will this work in practice?

In particular what will happen to works which were out of copyright protection is not clear from the bill. There are likely to be some transitional provisions and these works will ultimately be protected by the copyright regime.

Who benefits?

To qualify for the extended term of protection, a work must be artistic in the first place. There is a lot of talk about how British designers will benefit but this will not apply across the board. Some designs may not qualify as not all designs are necessarily artistic. The definition of art in the CDPA is fairly broad but nevertheless restricted to more traditional notions of art. The area most of these items are likely to fall within is a "work of artistic craftsmanship" which unlike paintings etc is not explicitly a work “irrespective of artistic quality”.

Some designs have become iconic over time but were not necessarily always recognised as artistic. The definition of what is artistic has always involved a great deal of subjectivity and unfortunately judicial rulings on what is art may be unavoidable. There are problems and not everyone will benefit. Nevertheless, if the bill is passed it will be another item in the designer’s IP arsenal. Whilst it may not be the huge boost to British business that it is hyped up to be, it will put the UK on a more equal footing with the rest of Europe.

The people who lose out are those that manufacture ‘replicas’. They can choose to move sufficiently far away from the original to not be copying a ‘substantial part’ (a risky strategy) or take advantage of the transitional provisions to sell off existing stock and move business operations to Estonia or Romania (the only other two EU countries to restrict the term of protection for designs).


Is it necessary?


Do we really need more copyright protection? This is a complicated question but there has been a significant disparity in the protection afforded to designers and musicians, writers etc and no real justification for such a major difference in approach. The change may be good for British industry and it will definitely keep some British lawyers busy. Quite apart from subsistence and infringement issues, there are going to be questions over ownership; if the bill is passed those designers who were commissioned (rather than employed) will suddenly own the resurrected copyright in design – not the company which is exploiting the rights and may have to negotiate an expensive licence.

You can track the passage of the bill here.

Is a cropped photo always a "substantial part" of the original image?

Publish Post: A red bus yesterday

The Red Bus case spawned a dedicated 1709 blog seminar at Olswang last Tuesday. The panel of speakers consisted of Michael Edenborough QC who represented the successful claimants, Brigitte Lindner, an expert in civil law and Sam Ricketson, an Australian academic.

One of Michael Edenborough’s more interesting arguments was that a cropped photo is, by its very nature, a substantial part of the original photograph.  Whilst there is a logic behind such a presumption it is unnecessary and potentially misleading to incorporate it into the test for what is a “substantial part”.

Is the photo on the right a substantial part of the one on the left?
[Almost certainly].

But does it follow that the photo on the right uses a substantial part of the photo on the left?
[?]

This proposition was taken a step further by Edenborough who suggested that the cropped photo (i.e. a substantial part of photo 2) would [inevitably] infringe photo 1 (on the left, above).  I'm not convinced that such a solution is helpful or even sensible and incorporates a measure of distance from the original copyright work which is not envisaged anywhere in the legislation or case law.  In my opinion (and based on my understanding of Designers Guild) a substantial part of photo 1 could very easily be an insubstantial part of photo 2.

It would be interesting to better understand the reasons and motivations for cropping photographs in the first place.  If the photographer readers out there (Tom Ang, I'm particularly talking about you) could provide some insight, it would be much appreciated.

New Year – old art enters the public domain

As regular Art & Artifice readers will know, New Year celebrations are not just about watching fireworks, dancing, and eating and drinking enough to survive a resolution ridden January. The real point of the New Year is to celebrate the fact that a lot more works enter the public domain. 1709 blog has looked at some of the key literary and musical works which have entered the public domain (particularly the works of Virginia Woolf and James Joyce).

Amongst the artists whose work has entered the public domain, we have the sculptor behind Mount Rushmore, a cubist, an anti-cubist, a “Glasgow Boy”, the most expensive female Indian painter and several photographers and designers.

We have tried to be as comprehensive as possible but if there are any artists who died in 1941 that we have missed, please use the comments section below to let us know.

Simultaneous Windows on the City, 1912

Robert Delaunay was a French artist who cofounded the Orphism art movement (a form of cubism noted for its use of strong colours and geometric shapes).

His later works were more abstract, reminiscent of Paul Klee (whose works entered the public domain last year).

Sources: Art Icons and Wikipedia

Building Mount Rushmore

Gutzon Borglum was an artist with a penchant for carving political figures. He is most famous for creating the Presidents’ heads at Mount Rushmore, South Dakota (and for being referenced in National Treasure 2!). He also created the famous carving on Stone Mountain which depicts three figures of the Confederate States of America: Stonewall Jackson, Robert E. Lee, and Jefferson Davis, as well as other public works of art including a six-ton bust of Abraham Lincoln, and a series of sculptures in Manhattan's Cathedral of St. John the Divine.

In 1916, Borglum was appointed to cut away much of the copper surface of the statue of liberty torch's flame and install glass windows. Snow and rain leaked in through the windows leading to corrosion. In the mid-1980s the old torch was removed and placed in a museum. The replacement torch is covered with gold leaf.
For a gallery of Borglum’s work, see here.
Sources: NNDB.com, Statue of Liberty Blog and wikipedia

Churchill by Lavery

Sir John Lavery, one of the “Glasgow Boys” first entered the world of art through a job touching up photographic negatives in Glasgow. Before long he had developed a considerable reputation. Indeed, his early work was hung next to Manet's Bar at the Folies Bergère at the 1882 salon.

Although appointed an official artist in the First World War a combination of illness and a car crash during a zeppelin bombing raid kept him from fulfilling this role as war artist. He later moved on to portraiture and painted everyone from Winston Churchill to John McCormack. After the war he was knighted and in 1921 he was elected to the Royal Academy.

Sources: Wikipedia and ulsterhistory.co.uk

Three Girls

Amrita Sher-Gil was an eminent Indian painter, sometimes known as India's Frida Kahlo. She is reportedly the 'most expensive' woman painter of India. She had a Eurasian upbringing, born in Hungary, studying art in France but living much of the intervening period in the Punjab. After receiving considerable critical acclaim in France, in 1934, Sher-Gil returned to India and evolved her own distinct style which tended to take Indian villagers and beggars as her subject.
Sources: iloveindia.com and wikipedia

Alexander Sakharoff, 1909

Alexej von Jawlensky was a Russian expressionist painter active in Germany. His work has grown in reputation and price tag. In February 2008 his Schokko mit Tellerhut sold for £9,400,000. Despite having built a strong reputation and made a lot of friends in Germany, when The Great War began, Jawlensky was expelled from Germany due to his Russian citizenship.


Source: wikipedia

1919 propaganda - Beat the Whites

El Lissitzky was a Russian artist, designer, photographer, typographer, polemicist and architect. He was an important figure of the Russian avant garde, helping develop suprematism and designing numerous exhibition displays and propaganda works for the former Soviet Union. His work greatly influenced the Bauhaus and constructivist movements, and he experimented with production techniques and stylistic devices that would go on to dominate 20th-century graphic design.

El Lissitzky developed a suprematist style of his own, a series of abstract, geometric paintings which he called Proun (effectively suprematism in 3D). He took the principles one step further and between 1923 to 1925 developed the idea of “horizontal skyscrapers”. Each proposed “sky scraper” was a flat three-story, 180-meter-wide L-shaped slab raised 50 meters above street level. Lissitzky argued that as long as humans cannot fly, moving horizontally is natural and moving vertically is not.

Fountain of Naiads, Rome

Mario Rutelli was a Palermo based Italian sculptor. His masterpiece is a Fountain of Naiads on the Piazza della Repubblica in Rome. He dedicated himself to big monuments such as the monument to Anita Garibaldi on Janiculum Hill in Rome.
Among his surviving works are the statue of Goethe at Munich, and a war memorial in Aberystwyth.

Source: Rome Tour

Alice in Wonderland furnishing fabric

Charles Voysey was an English architect, and furniture and textile designer. His early work was as a designer of wallpapers, fabrics and furnishings in a simple Arts and Crafts style. He is renowned as the architect of a number of notable country houses. He was one of the first people to understand and appreciate the significance of industrial design.

Voysey was influenced by the work of William Morris, the Arts and Crafts Movement and Art Nouveau. Unlike most Vicotorian design, he was concerned with form and function i.e. simplicity over the ornamental and decorative.

Sources: The V&A and Wikipedia

Water Rats

Francis Meadow Sutcliffe made a living as a portrait photographer. He is today known for his extensive photographs of the people of Whitby, a town he lived in and knew well.
His most famous photograph, Water Rats, was taken in 1886.


A selection of his photos available here.

Seiki Kayamori was a Japanese photographer who spent the latter part of his life in Alaska. The FBI suspected him of spying. Two days after the attack, awaiting his arrest, Kayamori committed suicide. No credible evidence has ever been produced to indicate that he was a spy. Many of Kayamori's photographs are now kept in the Alaska State Library.



Maximilien Luce was a French Neo-impressionist artist. Luce is best known for his pointillist canvases. Like Pissarro, he was active with anarchist groups in Paris in the 1890s. During World War I, Luce painted war scenes, depicting soldiers struggling against the horrors of the Great War.

The Kolkhoznik, 1931

Pavel Filonov formulated the principles of analytical realism, or "anti-Cubism". According to Filonov, Cubism represents objects using elements of their surface geometry but "analytical realists" should represent objects using elements of their inner soul.

From 1932 onward, Filonov literally starved but refused to sell his works to private collectors. He wanted to give all his works to the Russian Museum as a gift so as to start a Museum of Analytical Realism. He died of starvation on December 3, 1941 during the Nazi Siege of Leningrad.
Source: MOMA

Happy new year!

Happy New Year from Art and Artifice! We hope 2011 brings you joy, happiness and lots more exciting art law news.

As always, with the start of a new year many works of art lose their copyright protection. This blog is dedicated to the artists who died in 1940 and their now copyright free art. If you know of any artists we have overlooked, please let us know using the comments section below.

John Calvin Stevens

was an American architect who worked in both the Shingle Style, in which he was a major innovator, and the Colonial Revival style. He designed more than 1,000 buildings in the state of Maine and several others throughout the world, including various features of this church.

Robert Frangeš-Mihanović

was a pioneer of modern Croatian sculpture and one of the initiators and organizers of artistic life in Zagreb at the turn of the century.

Isaak Babel

was a Soviet journalist, playwright, and short story writer acclaimed as "the greatest prose writer of Russian Jewry.” Despite being an enthusiastic and loyal Communist, Isaac Babel was arrested, tortured and executed during Stalin's Great Purge.

Charles Herbert Woodbury

was an American marine painter. He was renowned for his images of the coast and sea. Seeing and understanding movement was fundamental to his art and teaching, and is reflected in his own maxim: “Paint in verbs, not nouns.” Woodbury had over 100 solo exhibitions throughout his career, and his work can be found in many of America’s most prestigious art galleries including the Met in New York.

Paul Klee

was a renowned Swiss artist who died in 1940 of scleroderma, a disease which is generally acknowledged to have strongly influenced his creative art. Klee has been associated with Expressionism, Cubism, Futurism, Surrealism, and Abstraction. His pictures such as this one of a cat



are difficult to classify. He generally worked in isolation from his peers, and interpreted new art trends in his own way. He was inventive in his methods and technique. Klee worked in many media including oil paint, watercolour, ink, pastel, etching and others. He often combined them into one work. He used canvas, burlap, muslin, linen, gauze, cardboard, metal foils, fabric, wallpaper, and newsprint.

Paul Behrens

dabbled in various artistic design enterprises particularly in applied arts, including constructing typefaces, ceramics, and magazine covers. In 1907, the German company Allgemeine Elektricitäts-Gessellschaft (AEG) hired Behrens as a consultant. In an early form of marketing, he transformed the company's image and created, arguably the first, corporate identity. He designed the AEG trade mark, stationery and catalogues, as well a certain products for the company. Whilst his copyright no longer has any intellectual property rights, any trade marks which remain on the register can be protected almost indefinitely so long as the registrations are maintained.