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Post #10 of our Top 10 of IP in 2020

State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606 (6 November 2020)

Can a fashionable neoprene tote bag be protected by copyright law?  This question was recently answered by the Federal Court.

The copyright-design overlap is a complex interaction between the Designs Act and the Copyright Act, but in a nutshell, denies life plus 70 year duration copyright protection to three-dimensional manufactured products, on the policy that if anything, they ought to be protected by the 10 year protection industrial designs regime.  The one exception is for “works of artistic craftsmanship”, intending to reward real artistic quality that is seen as not fitting within the industrial design system.

Therefore, designers have from time to time asserted that their fashionable, or carefully and proudly crafted creations are works of artistic craftsmanship, to get around this issue.  

This case is about a fashionable neoprene fabric tote bag, which failed to qualify as a work of artistic craftsmanship, including because the designer “did not approach the design and manufacture of [the bag] as an artist-craftsperson”. Many of the issues encountered in designing the bag were “purely functional in nature”.  While the choice of neoprene fabric was “unconstrained by the function and utility” of the bag, thereafter “design choices embodied within the bag were constrained by functional considerations”.

This case is a reminder just how tote-ally high the threshold is to achieve recognition as a work of artistic craftsmanship.  While machine production is not necessarily a barrier, an item will not qualify just because it is visually appealing, or a lot of work went into is creation, or because it is “arty”, or is handcrafted.  Something more than these is required, to be assessed on a case-by-case basis. None of that is a criticism of the quality of the design or style of these tote bags – it’s just that they didn’t meet the high legal threshold to be a work of artistic craftsmanship.

At paragraph [78] of the judgment:

“The more that functional considerations dictate the form of expression, the less the scope for real or substantive artistic expression.”

This case might have been in the fashion world, but previous cases about works of artistic craftsmanship have dealt range of things from machine-knitted jumpers, lever-action corkscrews, a plug model of a yacht, furniture, and children’s toys, with varying outcomes. 

3D printing didn’t specifically arise in this case, but generally speaking, the increased ability for self-manufacturing with such technologies may not only result in greater proliferation of creativity – but also the ability to easily reproduce the shape and appearance of other products, and very likely get away with it.

Unregistered designs are not protected.  The only exception – the work of artistic craftsmanship – will be beyond the threshold of many products that have functional elements, no matter how much love, care, or artistry went into their creation.  So where possible, register a design! ☁︎

2020 has seen a very healthy amount of activity in intellectual property law in Australia.  In no particular order, my Top 10 of 2020 series of posts contains my top ten things in IP from the year, and what they might mean for 2021. 

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