The ruling, welcomed by London law firm Tarlo Lyons, who have been following the case closely, is expected to deal a blow to many instances of artists’ work being exploited by others for gain on the basis that their versions of the work are “inspired” by the original but are not “substantial copies”.
The nub of the ruling is that the overall impression of a work is what matters in deciding whether it is a “substantial copy” – and therefore an infringement of copyright. It is not correct, as some argue, to deal with disputes by dissecting works and assessing their component parts, such as colour, size, design, technique and style, considering each in turn.
This follows a trend on the Contemporary art scene where many leading artists “borrow” from the works of others, a trend that could soon tail off if recent events are anything to go by.
“This case clarifies that artists and designers have strong rights to protect the misappropriation of their designs,” Tarlo Lyons partner Simon Stokes told the Antiques Trade Gazette.
The Lords reversed an Appeal Court ruling and supported the original trial judgment in the case of the Designers Guild Ltd v Russell Williams Textiles Ltd.
The Designers Guild had commissioned an in-house designer to come up with a fabric design based on the style of Matisse. She created a fabric with flowers on a striped background inspired by the artist. About a year later, Russell Williams came out with a similar, but not identical, design of flowers on a striped background in a similar style.
The Designers Guild sued for copyright infringement and the case went to trial in 1997. The judge found a clear case of copying when he published his findings in early 1998 but Russell Williams decided to appeal.
In the Court of Appeal, they argued that they had copied the style of the design, but not a substantial part of the design itself. The Appeal Court justices agreed, overturning the original judgment on the grounds that although there was copying, what was copied was not, in the justices’ view, protected by copyright – they were merely the “idea” and techniques behind the Designers Guild design, and copyright does not protect mere ideas or techniques.
The matter then went to the Lords, who reinstated the original trial judgment, saying that although the designs were not identical, it was clear that Russell Williams had copied the style and look of the Designers Guild design as a whole and that was copyright infringement.
The ruling came in the same week as the controversy over Turner Prize finalist Glenn Brown’s work The Loves of Shepherds 2000, which was discovered to be heavily based on the cover illustration of a 1974 science fiction novel, Double Star, by the author Robert A. Heinlein.
Legal opinion, quoted in The Times and referring to the House of Lords ruling in the Designers Guild case, said that the book cover artist, Anthony Roberts, had a “clear claim” and could prevent exhibition of the Turner Prize work and insist no further use was made of it.
This was in spite of an earlier opinion from a Times art critic that Brown’s painting showed significant individual skill and creativity to stand as a work in its own right, a view echoed by Tate director Sir Nicholas Serota.
The difference was that the critic referred to specific elements of the work whereas the Lords ruling insists, as stated, that the overall impression is what counts.
“All those working in the creative industries should breathe a sigh of relief that the Lords overturned the Court of Appeal decision,” concluded Mr Stokes.
