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May 2007
Industrial Designs, "artistic craftsmanship" and possible copyright protection- a new case
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 Lawyer in Profile  Geoff MusgrovePartner, Commercial Group Phone: 03 9288 0555 Geoff Musgrove is a partner in our Corporate & Commercial group. His principal areas of practice are commercial contracts, mergers, acquisitions and disposals, joint ventures, intellectual property, Corporations Law, insolvency and information technology law. Geoff has acted for a wide range of commercial, government, accounting, manufacturing, professional and rural industry clients. He advises them on contract negotiations, acquisitions, disposals, joint ventures, reconstructions, insolvency, amalgamations, commercial litigation, computer contracts, franchise agreements, commercial property transactions, tax planning and intellectual property. Recent experience includes the merger of a large accounting practice with a listed public accounting practice, the disposal of businesses in the middle market, advice on resolution of shareholder disputes, drafting joint ventures and licence agreements, advising on the conduct of board meetings and reviews of company constitutions. Geoff has also been involved in the establishment of ADVOC Asia, a consortium of Asian- based law firms. Geoff provides advice to our clients forming business relationships in the Asian region and to overseas clients doing business in Australia.  
Although copyright law can protect the value of your - or your client's -industrial designs, the designs need to be a 'work of artistic craftsmanship'. A recent High Court shows it might be safer to register the design.
Patrick Shing
A famous naval designer John Swarbrick - who designed the 12 meter yachts Kookaburra I and Kookaburra II - designed a new yacht, the JS 9000. He built a full scale model. Mr Burge used the full-scale model to reproduce the JS 9000. The designer Swarbrick sued Burge for infringing the copyright in the mould of the full scale model. In the High Court, Mr Swarbrick lost his copyright claim because his work didn't amount to 'a work of artistic craftsmanship.' The learning from the case is that people with industrial designs should consider registering them. How do you protect designs?To protect design rights, a designer can either:
However, copyright law does not protect designs used, or intended to be used, in an industrial process. This limit aims to avoid the potentially stifling effects of recognising lengthy copyright protection for industrial designs. The limit is to some extent balanced by, effectively, an exception which gives copyright protection to 'a work of artistic craftsmanship.' This is the phrase considered in the recent High Court case of Burge v Swarbrick. A design as a 'work of artistic craftsmanship'The Court rejected Mr Swarbrick's claim and found that the design of the yacht was not a 'work of artistic craftsmanship'. The Court did so on the basis that:
For Mr Swarbrick's yacht, the Court ruled that the full scale model of the JS 9000 was not a work of artistic craftsmanship because it was designed primarily for functional rather than aesthetic reasons. Effectively, the 'matters of visual and aesthetic appeal were but one of a range of considerations in the design' and were of secondary importance compared with the functional objective of developing a high-speed yacht. ConclusionThe High Court said that: 'it may be impossible, and certainly would be unwise, to attempt any exhaustive and fully predictive identification of what can and cannot amount to "a work of artistic craftsmanship". However, determining whether a work is "a work of artistic craftsmanship" does not turn on assessing the beauty or aesthetic appeal of work or on assessing any harmony between its visual appeal and its utility. The determination turns on assessing the extent to which the particular work's artistic expression, in its form, is unconstrained by functional considerations.' The Court's decision is unlikely to afford great comfort for designers or their clients in respect of designs that are prepared in potentially ambiguous areas which may include printing, weaving and furniture making. Accordingly, designers or their clients who consider there may be prospects of designs being used for mass production should seek advice on how best to protect their interests in the original design. More informationIf you would like more information concerning this topic, or protection of intellectual property rights generally, please contact Maddocks and ask for a member of our Intellectual Property & Technology team:
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