Fabrics can be protected by copyright in the UK

In a recent case the UK court ruled that fabric design can be protected by copyright as a work of artistic craftsmanship and the sale of clothes made from such fabric can amount to copyright infringement.

Response, a clothing company, supplied EWM, a major retailer of clothing, with women’s tops made of a jacquard fabric with a ‘wave arrangement’ design. After Response increased their prices, EWM found alternative suppliers of the clothing items made from the same jacquard fabric.

Response filed copyright infringement proceedings claiming that copyright subsisted in the wave arrangement design of their fabric and that EWM’s sale of clothes made form that fabric amounted to copyright infringement.

The court ruled that the fabric design can qualify for copyright as a work of artistic craftsmanship so long as the fabric is

(a) a work of craftsmanship, i.e. the creation of the fabric required skilful workmanship; and

(b) artistic, i.e. it was made with creative ability that produced aesthetic appeal.

On the facts, the court found that the creation of wave arrangement design involved the required craftsmanship and that the commercial success of the fabric showed the necessary aesthetic appeal.

The judge also provided the following guidance on the definition of artistic craftsmanship:

• a work of artistic craftsmanship can be made using a machine;
• appeal to potential customers can illustrate the required ‘aesthetic appeal’; and
• production of multiple copies of the item does not preclude it from being a work of artistic craftsmanship.

The court further ruled that the sale of garments made from infringing fabric design amounted to copyright infringement.

Briffa comment

Before this decision, the English courts have been reluctant to grant copyright protection to garments. This is an interesting development in English copyright law, and an expansion of copyright protection that may be welcomed by fashion industry.

In practice, fashion designers rely on a combination of copyright, trade marks, passing off, unregistered and registered design rights.

Briffa’s lawyers have a detailed understanding and experience of the way in which best to protect all aspects of your designs and can use this knowledge to enhance your design business.

If you would like to discuss how best to obtain protection for your design business please do not hesitate to get in touch with us on info@briffa.com or 020 72886003 and one of our specialists will be happy to have a preliminary consultation with you without charge.