'When Is A Chair Just A Chair?' And Other Annoying Copyright Questions

from the industrial-art dept

Last year, the UK decided to repeal a part of its copyright law that enforced a drastically reduced copyright term for “industrially exploited artistic works” including “works of artistic craftsmanship” — in other words, the industrial design of manufactured objects that are primarily functional, like appliances and furniture. Rather than the full life-plus-seventy term, the copyright on such works was limited to 25 years from the date of manufacturing, making it somewhat closer to the US approach where functional designs can’t be copyrighted but can qualify for 15-year design patents. It was a sensible rule (at least far more sensible than giving them full copyright, even if giving them any at all is still questionable) that allowed industrial designs to rapidly enter the public domain and be used by multiple manufacturers for everything from inexpensive reproductions to retro-chic luxuries — or, in the eyes of IP maximalists and the furniture industry, it was a travesty of a rule that cruelly robbed aging designers and flooded the market with cheap knockoffs and brazen cash-grabs.

In any case, the rule was repealed and it was repealed retroactively: furniture designs that had already entered the public domain were shoved back under life-plus-seventy copyrights, and the industry was given a grace period to purge their stocks. The repeal officially came into effect in July, and the transitional window will end in January. Then we can watch the lawsuits begin to flow — and they are going to involve a whole lot of wrangling over stupid, highly subjective questions, with lots of flowery protestations about artistry and judges thrust unwittingly into the role of critic, because the question of what exactly this law applies to is one big gray area.

Right now we can get a taste of the future. Earlier this month Margaret Briffa, a UK IP lawyer, posted an advisory to industrial designers with old designs that had fallen out of copyright, all about preparing to take advantage of their newly restored rights. Now, Briffa is just doing her job and the post is quite bland and fairly measured, so the purpose of this post isn’t to attack her — but it perfectly highlights just how silly and confusing some of these fights are going to be (it also seems to be wrong about the exact kick-in date for the rules, but with all the shifting deadlines and grace periods it’s hard to say):

The Intellectual Property has published guidance on the relevant criteria to determine what would be considered a work of artistic craftsmanship. It makes interesting reading. There are very few reported legal cases on this topic and the guidance has been gleaned from things said by judges in no more than a handful of cases.

Here is what designers would need to establish their works as being of ?artistic craftsmanship?

(i) The work must combine both artistic quality and craftsmanship

(ii) Artistic means real artistic quality and must be a work or art or fine art. It is not enough that it looks attractive. Whether something is artistic must be determined in light of evidence. This could include the intention of the maker to create a work of artistic craftsmanship; evidence of how ordinary member of the public regard the work and whether the designer already has works in his name acknowledged to be artistic as well as the level of aesthetic appeal.

(iii) Craftsmanship presupposes special skill knowledge or training.

(iv) One factor which may be used in determining whether a work is a work of artistic craftsmanship is assessing the extent to which the work?s artistic expression is unconstrained by functional considerations.

From the above it is not difficult to see that in defending claims there is much scope for debate as to whether or not an item is a work of artistic craftsmanship. Consider some iconic works from the 50?s and 60?s which are popular again now and which were specifically intended to be utilitarian. There has to be a real question over whether such works would benefit from this change.

A briefer version of those rules could be something like “I dunno, does it look artsy to you?” and offer nearly as much guidance, despite the insistence that this is not enough. Briffa’s reference to vintage designs is worth thinking about: lots of classic furniture designs were bland and functional in the eyes of their contemporary public, and only became iconic with passing time and changing norms. When they are revived from the public domain as retro hits the designers might feel annoyed that they weren’t the ones to cash in, but they already created them under an agreed social contract and there’s no public benefit to changing that retroactively — plus there was nothing stopping them from trying to revive the designs themselves. And even if you want to argue that artists deserve such consideration (questionable already), if all they were doing was creating a functional chair with minimal aesthetic considerations, that’s a different story.

And so now courts will be tasked with splitting those hairs: is that 1950s table a work of art or a functional item that gained kitsch status later? Is that 1970s chair just a chair? For an idea of what this will look like, we can read Briffa’s specific advice:

For other works where there is a real prospect the design would qualify as a work of artistic craftsmanship we would encourage designers to put together the design history including all drawings and sketches evidencing creation of the design. In addition in light of the relevance of what may have been in the mind of the designer when he created the design it would be prudent to prepare such a statement now for future use by a designer or his business in the fight against copyist.

That’s what you get when you start trying to determine the intentions of creators and the artistic value of designs — plaintiffs and defendants battling it out to prove whether someone was crafting a masterpiece or building a damn chair. As we’ve seen with fights around appropriation art and photo composition and unauthorized sequels — all areas where the precise nature of artistic expression, and the artistic value and intention of various works, are necessary considerations — forcing judges to make these art-critic determinations on highly subjective questions is extremely unpredictable, leading to contradictory rulings, double-standards among different mediums, and lengthy appeals processes that lock works up for years. Thank god the UK can now do the same with furniture, right?

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Comments on “'When Is A Chair Just A Chair?' And Other Annoying Copyright Questions”

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That One Guy (profile) says:

Copyright infringement isn't theft, but retroactive copyright extensions certainly are

In any case, the rule was repealed and it was repealed retroactively: furniture designs that had already entered the public domain were shoved back under life-plus-seventy copyrights, and the industry was given a grace period to purge their stocks.

This? This is what theft involving copyright actually looks like. Barring the ‘grace period’ the copyrights in question went from ‘everyone can use them, no one needs to pay’ to ‘no-one can use them unless they pay’, almost literally overnight.

What was free for everyone to use after it made it through the original government granted monopoly period is now locked back up, and to make matters worse I imagine those with ‘infringing’ stock are going to be forced to destroy it if they can’t sell it in time in order to avoid costly lawsuits for infringement, a demonstrable loss due to copyright, as opposed to the theoretical losses attributed to copyright infringement.

Daydream says:

Re: Copyright infringement isn't theft, but retroactive copyright extensions certainly are

Seconded! There’s nothing left to add to your comment, really.

I’m curious though, before I self-righteously explode at the utterly corrupt UK government for this perversion of justice…could someone point to other articles, or the text of this repeal bill, proving that this law is intended to take works out of the public domain?

And for that matter, has there ever been any lawsuit where a creator was sued for using copyrighted material, that was in the public domain when they created their work?

Anonymous Coward says:

Re: Re: Copyright infringement isn't theft, but retroactive copyright extensions certainly are

Wait until lawsuits over derivative works begin! They’ll have velocity then.

… but of course, things will accelerate when they get to second order derivatives. But rest assured that lawsuits over third order derivatives will only be pursued by jerks.

Wendy Cockcroft (profile) says:

Re: Re: Copyright infringement isn't theft, but retroactive copyright extensions certainly are

See every Happy Birthday lawsuit ever.

I’ve never seen a pro-copyright law passed or even proposed with the express intent of removing it from the public domain. The maximalists prefer to frame the argument in terms of ensuring that the property rights of the copyright holders are enforced as a matter of upholding the rule of law.

Feel free to self-righteously explode. Our government’s corruption is embarrassing beyond belief.

Skeeter says:

Re: Copyright infringement isn't theft, but retroactive copyright extensions certainly are

Holding more than one ‘material patent’, I strongly disagree, and here’s why:

First, I spent hundreds of hours away from family and friends, working on a concept design that I wanted to not only make work, but be able to make profit at (just like when you go to work, you probably don’t do it for your health, either).

I resolve the functionality and leave it ‘bare-bones’ in the design, submit the patent filing, wait 7-months, then I get it back saying ‘ref. 323#$#123, etc., etc., etc., Seems that my ‘bare-bones’ design infringed on others ‘approved, bare-bones designs’. Ok, fair enough, back to the drawing board. I work through each reference returned, chase down what they were trying to do, constantly asking ‘why I don’t see this stuff on the market, if it is so prevalent?’ and work around these ‘keystones’. Four months later, again, resolved. I submit the work (again), now my tab is running on up towards $10,000 for this concept submission – and watch for almost 20-months! as nothing is said. One day, I get the package back, ‘submission accepted’, final packet pending.

In total, 27-months, $14,220, and it is MINE, MINE, MINE – for a grand total (initially) of 7-years, with options to ‘re-claim’ on the year, for about $1,000. You see, to keep it active, you gotta keep paying, or like a gold-claim in prospecting, someone else can ‘file their design’ which ‘opens-it-up’.

Too long? Be the one who lost a half-work-year (on your own time), pulled $15k out of savings to finance a ‘wing-shot’ that you might never make a dollar at to repay it, and know that you must ‘pay the devil’ each year after the initial is gone, to keep it.

You want to go after someone, go after those mega-corporations that have gadgets STILL IN PATENT since 1912, that are STILL PAYING THE YEARLY and not building to the patent, that are locking everyone up from new designs!

Better yet, you need to file your own patent, before you go after patent owners at all. Otherwise, you’re ‘break-and-enter’ specialists, who’ve never owned a house, but experts at ‘nightshift’ entry to take what you didn’t personally earn or experience.

That One Guy (profile) says:

Re: Re: Copyright infringement isn't theft, but retroactive copyright extensions certainly are

That’s a nice story, but to be blunt: So what?

You spent a lot of time and money to get a patent, what does that have to do with a bunch of previously public domain works being yanked out of the public domain and given (effectively) eternal copyright durations? Companies likely being forced to destroy stock if they can’t sell it quick enough, just because someone not only changed the law they changed it retroactively?

If the idea is that ‘They spent money on making it, they deserve to make money off of it’, great, but that still ignores the (purely theoretical at this point) idea behind patents and copyright, which is that they’re there not to serve the creators but the public, through a deal of temporary monopoly rights in exchange for the public gaining ownership afterwards so that the next wave of creativity can occur.

Moreover it ignores the huge problem of retroactively changing the deal, and if you’re upset with the idea of a creator having his stuff ‘taken’ then you should have a huge problem with the same thing happening to everyone just because some parasites decided that they didn’t want to uphold their end of the bargain and/or some idiot politicians thought that they’d score some easy ‘donations’ and positive PR by ‘protecting the innovators against ravening public’.

As for the last ‘If you don’t own patents you can’t comment on them’ line, yeah, no. I wouldn’t have the first idea where to even begin with regards to designing a car, but if I see one that stalls out every 500 feet I can safely say that it’s busted. If that happens with every one of those cars I would be safe in assuming that whoever designed it was likely an idiot, or the manufacturing process was heavily flawed.

Similarly here, I feel absolutely justified in saying that a system where a deal was struck, and then retroactively changed is one where something is seriously screwed up, and I don’t need to have a single patent or copyright to my name to say so.

Not an Electronic Rodent (profile) says:

Yeah, that works!

One factor which may be used in determining whether a work is a work of artistic craftsmanship is assessing the extent to which the work’s artistic expression is unconstrained by functional considerations.

So a chair that’s f***ing uncomfortable is artistic, and a comfortable one isn’t… right? Damn, who knew my old school had the most artistic chairs ever?

Anonymous Coward says:

"Shoot yourself in the foot" moment.

Since those who voted for this repealing of the law have shot the country in the foot, it is only fair that, each one of them be shot in the foot to give them a reality check on what they have done.

Of course, this won’t ever happen as they have given themselves total immunity from the results of their decisions.

Meh says:

Going the wrong way

If it want for this protectionist bullshit copyright, we’d be in a golden age of civilization.

I agree there is a place for bit and I agree matching it like thebrediculous credit history of 7 years. Then public domain. So creators can feel the need to keep pushing out new fresh designs and products. Not sit back and sit on it like a golden egg in their ass.

75 years plus life is the most ridiculous concept ever. That’s gotta get cut down asap. I may even view the TPP’s, and the like, a little -just a little, more favorable light.

Anonymous Coward says:

Why can’t industrial designers rely on trademarks rather than design patents to protect their intellectual investment? If a competitor creates a knockoff product, it doesn’t mean consumers will automatically accept it as a legitimate substitute. And if the knockoff product really is every way as good as the original, AND undercuts on price, maybe there wasn’t that much intellect worth monopolizing in the first place.

Rapnel (profile) says:

Where does the incentive to create come from when one can no longer lawfully create and someone else can sit on a single creation (and, apparently prevent others from sitting on one) for what amounts to several generations? .. Patently absurd notion of progress that stunningly neuters it in the same breath.

These types of “protections” are, in fact, preventative measures – designed to keep creators from creating. That much has become all too clear.

In no way is any original artistry threatened here for if your work is art, and valued as such, then said art will always be in demand as original works.

“Zero tolerance” has apparently now also become the mantra of “rights holders” along with every other war on ‘x’ – usually adversely effecting the most disenfranchised among us the most and benefiting only those already far too bloated with wealth and power the most.

A chair design protected for generations. Fucking ridiculous.

Anonymous Anonymous Coward (profile) says:

Re: Re:

Well, according to the copyright/patent/trademark maximalists, all the art worth creating has already been created, therefore life plus a quintillion years is reasonable.

On the other hand, those with new ideas are just copying old ideas, like Disney copying the Brothers Grimm…oh…wait…then, the life plus a quintillion years did not apply, so no harm no foul and brother Eames did not have any expectations of how comfortable…er…popular his design would be, so artistic or not, quash the copiers (even if they have been copying for over 75 years).

Anonymous Coward says:

Re: Re: Re:

As the Iliad and Odyssey, are also collected folklore. Disney and the brothers Grimm were following an old tradition sating back to Homer, make their names by collecting, editing and retelling the stories of their culture. However Disney the corporation is the entity that wants to claim story telling as something that its owns.

That One Guy (profile) says:


The day before the retroactive change to the law went into effect companies could use the designs freely, selling them without any worry because they were in the public domain.

The day after the law went into affect they are now in a position where they risk heavy lawsuits if they create any more (now infringing) furniture, and have to destroy or sell (assuming selling isn’t also considered infringement) stock during the ‘grace period’ or risk expensive lawsuits for infringement.

So no in fact they do not ‘still have [their] chair’, they’ve been told it’s no longer theirs and to get rid of it or be sued into the ground for copyright infringement.

A wee nony mouse says:

whatyeronabout ehh!

Consideration of artistic merit.

If the items have artistic merit that constitutes copyrightable material then that should be protectable.
I don’t agree with the decision to the retroactive implementation however.
Copyright should be defined clearly and should not have had varying time scales of protection.
It should have been the same for all artistic works in the first instance, and globally agreed where possible.

I think the real gripe has to be aimed at the earlier instigators who deemed it appropriate that industrial works with artistic merit would benefit from less time under protection than other artistic works.

Therefore the problem was created earlier and has presently been rectified (but very poorly)
The grace period should have been longer, and I have sympathy for those who legitimately invested and now cannot recoup that.
The government should be open to recompensating such investment and if not should be sued.

The problem clearly is not one that resides with the modality of copyright but with its implementation by government.

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