A Journey into the Interior

On 18 June 2015 the British Institute of Interior Design (BIID) awarded the well-known CEO of the campaigning organisation Anti-Copying In Design (ACID) Dids Macdonald OBE with a Fellowship. This was in recognition of her untiring work on behalf of the design industry over many years. Dids started out as an interior designer before moving on to product design.

Interesting though that factoid is, I barely gave it a thought at the time. Not until I came across a recent query about copyright and interior design posted on a forum, did I start to ponder the question: how exactly is interior design protected?

Copyright

We all know that architectural plans and works of architecture are explicitly covered by copyright, but that definition surely cannot be extended to include soft furnishings or wall coverings, which in no way constitute the fabric of the building in which they are installed. Admittedly, the patterns on fabrics and wall coverings (Designers Guild comes to mind) may well be protected by copyright (as artistic works) but that would not extend to the complete interior design scheme. The design drawings for an interior design would certainly qualify as artistic works assuming they evidenced sufficient originality - an easy hurdle to overcome. But does that mean that section 17(3) of the Copyright, Designs and Patents Act 1988 would then apply to the finished room or interior space. Here's what the Act says:

(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.

If that is interpreted too broadly, we could see a garden or most everyday objects becoming copyright works if they originate from a design drawing which itself is subject to copyright. This was an issue extensively explored by the House of Lords in British Leyland Motor Corp v Armstrong Patents Company Ltd [1986] albeit in the context of the 1956 Copyright Act. 
 

And what about works of artistic craftsmanship? We know from caselaw, for example Lucasfilm, Interlego and the much earlier 'Popeye' case (King Features Syndicate Inc. v. O & M Kleeman Ltd. [1941]) that for an object to be considered a work of artistic craftsmanship it must have a quality of art which the maker intended it to have, although the actual artistic quality itself is immaterial. Clearly an interior designer will go about fulfilling his or her commission in an artistic frame of mind, but can the assemblage of a number of items such as fabrics, wall coverings and soft furnishings, which have been designed and produced by someone else, really constitute artistic craftsmanship? In Shelley Films Ltd v Rex Features Ltd [1994], a film set was found to meet this criterion. But contrast that decision with Mr Justice Lloyd's obiter dicta in Creation Records in which he dismissed a collection of unrelated items as having the character of an artistic work. So does copyright really protect the totality of a design for an interior? And would the delayed repeal of section 52 CDPA make any difference? Probably not because that section applies to the making by an industrial process of articles derived from artistic works, which has little relevance to interior design.

Design Right

Design right came about specifically to deal with the sort of articles which, due to their practical or utilitarian nature and industrial form of manufacture, are ineligible for copyright protection. It is not really necessary to go into the detailed differences and quirks of UK registered and unregistered design right or the EU near-equivalent, community design right; suffice it to say that the legislation for all of these rights talks about articles and products as distinct physical entities, not as an assemblage of many items and features which may individually be subject to design right. The decoration and furnishing of a space is not analogous to a complex product made up of several components, like a Dyson vacuum cleaner. And furthermore design right only restricts the making of a similar product to substantially the same design, so it wouldn't, for instance, prevent an interior from being photographed and reproduced in Hello magazine. So does design right help interior designers protect their work? Possibly not.

What about Trade Mark Protection then

Surely I must be joking. Well no, not if you assume that Apple were serious with their application for trade mark registration for the interior layout of their Apple Stores, and which the Court of Justice of the European Union did not treat as a joke either. But this form of IP is hardly a practical solution in the everyday work of an interior designer.

Is there really an Issue here?

I imagine it matters to interior designers, and quite probably to Dids Macdonald and ACID too. But is there a need for additional legal clarity in this area? And if there is, in which area of IP law should the solution be found? There is a substantial difference between copyright with its lifetime plus 70 years worth of protection as compared to design right's maximum term of 25 years (and significantly shorter for the unregistered variety), not to mention the actual types of reproduction etc which are protected. It as hard to say how public policy might best be served. And how would such rights be enforced? If you are so taken with the decor in your local Nando's that you go home and reproduce their interior design in your living room, will anyone know or care?

Copyright in an Etched Floral

A recent spat between UK designer Rachael Taylor and retail giant Marks and Spencer demonstrates just how important it is for designers to protect their intellectual property.

Rachael Taylor created her "Etched Floral" hand drawn design in 2008 and since then she has produced various products bearing the design, including wallpaper, oven gloves, lampshades and tea towels. These products have been featured in a number of magazines, therefore one assumes that the design is relatively well-known in the world of etched floral designs.

M+S recently launched a new range of t-shirts bearing what Taylor calls a "strikingly similar" design. M+S's t-shirts can be seen alongside Taylor's products on her blog, so you can decide for yourself how similar the designs are. Pretty similar, is this blogger's conclusion.

© Holly Hayes

Taylor complained to M+S about a month ago and they responded saying that they were "unaware of the design". If they didn't copy her design it's not copyright infringement, however Taylor went a step further and decided to use social media to complain more publicly. Without admitting liability, M+S then pulled the product, saying: "We are sorry for any disappointment caused to Rachael Taylor Designs from the sale of a T-shirt that we bought in good faith from a direct supplier. After investigating the complaint we immediately withdrew the product from sale."

Taylor's request to high street retailers is that they publicly sign up to a pledge initiated by the Anti-Copying in Design Group, set up to protect independent designers from copyright infringement and to represent them in disputes. John Lewis, Next and Selfridges have signed up and have promised to commission rather than copy designs.

Copyright cannot be registered in the UK. This clearly benefits independent designers who may not know how or may not have the resources to register copyright in each of their designs, however it also means that in cases like this designers need to show copying in order to prove that copyright in their work has been infringed. It also means that retailers have no way of checking whether their suppliers are providing them with original works or not.

Taylor could of course have registered her design, which would have made her battle much easier, however many designers aren't aware that they can register designs, and even in larger companies the right is under-used. Registered designs are seen as complicated and niche rights however as this case demonstrates, in order to protect designers it is time that registered designs became more mainstream.