How do you defend a claim for copyright infringement?
Copyright is a right to stop copying. If there is no copying, there is no copyright infringement. However, how do you defend a copyright claim?
Generally speaking the following defences are the most common: i) independent creation (i.e. the author created the work independently without copying); ii) the work that you are alleged to have copied from is itself a copy of another work; and iii) there is not a sufficient amount of similarities between the two works for there to be an inference of copying.
Ideally, all three of these defences would be run together. However, this is not always easy, especially where, for example, there is no close prior art to argue that the work you are accused of copying is itself a slavish copy of a work of prior art.
That said, the defences of independent creation and no sufficient similarity can still be used effectively to successfully defend a claim for copyright infringement, especially where a particular design motif has become commonplace. A good example of this is the recent decision of the Intellectual Property Enterprise Court (the IPEC) in Ashley Wilde Group Limited v BCPL Limited  EWHC 3166.
Ashley Wilde Group Limited (Ashley Wilde) designed the pleated duvet cover at the top of the image below in 2012 and sold it between 2014 and 2015. BCPL Limited (BCPL) sold the pleated duvet cover at the bottom of the image below from 2017 which was designed in 2016.
Ashley Wilde believed BCPL’s pleated duvet cover infringed the copyright in its pleated duvet cover and issued proceedings for copyright infringement.
The IPEC found that there was no copyright infringement. This was because of the success of the defences of lack of sufficient similarity and independent creation.
Regarding the lack of sufficient similarities: the IPEC explained that when assessing the similarities between the two works, anything that was commonplace should be disregarded from the comparison. Here, the IPEC accepted BCPL’s evidence that pleated scallops were having ‘a moment’ in the interior design industry in 2016 and that they were therefore commonplace. The IPEC also found that pleated scallops in rows was commonplace. As a result, these similarities had to be discarded from the assessment of whether there was copying. From what was left, the IPEC found that there were not sufficient close or extensive similarities for there to have been copying.
Regarding independent creation: the IPEC explained that if the lack of sufficient similarities defence had not succeeded, the independent design defence would succeed. This was because BCPL had kept a detailed record of how it created its pleated duvet cover and these records indicated that it had not seen Ashely Wilde’s pleated duvet cover (i.e. there was no copying).
This decision illustrates the importance of designers keeping records of: i) how they created their designs; and ii) design trends at the time of their design. The case further demonstrates that it very hard to succeed with a claim for copyright infringement, where a lot of what has been copied is commonplace.
Designers should take the following precautionary measures to assist in the defence of a copyright infringement claim: keep detailed records of how your work is created and, if your work has drawn from recent trends, ensure your records include information about these trends.
Written by Ramsay Monime, Senior Associate