If you want a knock off replica Eames chair you have less than six months to pick it up, otherwise you will have to wait until 2048. The Eames walnut and leather armchair and ottoman sell for over £6,000 from the officially licensed and copyrighted producer, Vitra, but can also be picked up for as little as £400 if made in a Chinese factory and sold over the internet. This latter option is shortly to be fully closed off.
Section 52 of the Copyright, Designs and Patents Act was repealed on 28 July 2016 and from 28 January 2017 the change will have full effect. Section 52 limited to 25 years the term of copyright protection for industrially manufactured artistic works (i.e. artistic works where more than 50 copies are made) which are marketed. The repeal of this section means that the copyright protection is extended to the life of the creator plus 70 years, thus bringing the protection for such industrially manufactured works in line with that afforded literary, dramatic, music and other artistic works.
The repeal is retrospective with the result that some works which were previously legally copied and sold (such as Eames' chair) will now be once again protected. With changes to the law, manufacturers, importers, dealers and retailers of what they thought were lawfully copied works will now have to be careful.
However, in order to qualify for this new extended protection, the design has to be proven to be a work of "artistic craftsmanship". Unhelpfully, there is no statutory definition of a work of artistic craftsmanship and even the government's own guidance on the subject acknowledges that there is little UK case law on what "artistic craftsmanship" actually means.
It is not enough for a work (such as a piece of furniture) to look attractive to qualify. There needs to be a combination of artistic quality and craftsmanship. "Craftsmanship" presupposes special training, skill and knowledge for production. "Artistic" means it will have a real artistic or aesthetic quality. Ultimately everything will have to be reviewed on a case by case basis; the intentions of the maker, the maker's previous works and the views of the ordinary member of the public will all be relevant evidence.
In one of the few cases on this area of law (Hensher Ltd v Restawile Upholstery Ltd) a prototype of a mass-produced sofa failed to meet the requirement as a "work of artistic craftsmanship". Although mass-production is not itself a bar to artistic craftsmanship, as noted in the guidance, it "may cast doubt on whether it is truly one of artistic craftsmanship".
In Lucasfilm v Ainsworth weight was given to the functionality of the object; in this case the Supreme Court held that the iconic Star Wars Storm Trooper helmet was not considered to be artistic but rather was a functional prop whose primary function was utilitarian.
Those seeking to continue to make or sell some iconic furniture such as the Eames chair have two options;
- obtain a licence from the copyright holder, or
- make a modified version which avoids infringing the copyright.
Unfortunately with this latter option, there is no hard and fast rule to say how many changes make a modification to an artistic work acceptable. Under copyright law, you must not take a “substantial part” of the work if you wish to avoid infringing copyright. A substantial part is not defined in copyright law, but has been interpreted by the courts to mean a qualitatively significant part of a work, even where this is not a large part of the work.
The change to the Copyright, Designs and Patents Act will undoubtedly hit many businesses dependent upon the replicas market. However, it will conversely provide a boost to those with the licences to manufacture such iconic items as the Eames chair, the Eileen Gray table, the Arco Lamps, and the Barcelona chair, and the prices for these items are sure to rocket upwards.