Works of artistic craftsmanship are, if original, entitled to copyright protection – but what exactly does the phrase mean? In a ruling that clarified the law, the High Court found that a clothing fabric featuring a woven 'wave' design fitted the bill.

A range of ladies' tops made from the fabric was discontinued by a retailer after its supplier sought a price increase. A swatch of the fabric was later sent by the retailer to another clothing supplier with a request that it produce something similar. It did so, and the resulting tops were sold in the retailer's stores.

After the original supplier launched copyright infringement proceedings, the Court noted the requirement to read the provisions of the Copyright, Designs and Patents Act 1988 in conformity with the broad copyright protection enshrined in European Directive 2001/29/EC. On that basis, the Court found that the fabric's design was a work of artistic craftsmanship within the meaning of the Act. The design had an aesthetic appeal to customers, and it mattered neither that it was machine-woven nor that multiple copies of it had been made and sold.

Although the author of the design had not been identified, the Court was satisfied that it was original and that copyright in it had been assigned to the supplier. The similar fabric produced by the other supplier was an infringing copy of the original. There was no direct evidence that the retailer had sent swatches of the original to two more of its suppliers, but the Court found that they too had produced infringing copies.

The retailer had reason to believe that the goods it received from the other suppliers were infringing copies. Having probably invited them to produce tops in a fabric very similar to the original, it could have come as no surprise to the retailer that that was what it got. The Court found that the retailer had infringed the supplier's copyright by selling the offending fabrics as made up into tops.

Copyright and registered and unregistered designs are three different forms of intellectual property each giving rise to different rights but which may sometimes overlap. As the case illustrates this can be a complex area of law but one which can have important consequences for the rights owner. For advice on any intellectual property matter or dispute, contact Julian Milan or Roy Colaba on 0808 166 8827 or email them on j.milan@sydneymitchell.co.uk / r.colaba@sydneymitchell.co.uk.

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