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In any case, the rule was repealed and it was repealed retroactively: furniture designs that had already entered the public domain were shoved back under life-plus-seventy copyrights, and the industry was given a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