Skip to main content

IT'S NOT A WORK OF ART, IT'S JUST A BAG



A recent case in the Federal Court of Australia has backfired for a bag producer as the court ruled that there was not a single piece of artistic value or merit in their products.

In State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606, the claimant, State of Escape, claimed that Schwartz (and her company Chuchka) had infringed on their copyright works by producing a waterproof neoprene bag which was similar to a bag made by State of Escape. Mildly confident in their approach, State of Escape claimed that Schwartz had infringed their copyright on 34 different designs. 


State of Escape's Bags


Schwartz's Bags

According to section 31 of the Copyright Act 1968 (cth), copyright subsists in all artistic works, which is later defined as a work of artistic craftsmanship’. To determine whether State of Escape’s work was a work of artistic craftsmanship, Justice Davies, looked at the artistic elements to the bag and found them lacking. Using the factors outlined in Burge v Swarbrick [2007] HCA 17, Justice Davies found only the only artistic element to the bag was the use of perforated neoprene and that otherwise the Escape Bag design was “constrained by functional limitations”, that were “merely matters of visual and aesthetic appeal but also, critically, resolved functional issues”. In short, the only thing mildly artistic about the bag was the fabric they used, and every other element of the bag was required for the proper function of the bag. Justice Davies also did not take into consideration the intentions of the designer of the bag or other materials used in the construction of the bag. 


Therefore, if it isn’t artistic, then there is no copyright attached to it, and Schwartz is in the clear.


Justice Davies later remarked that if there were a chance that State of Escape could have established that the bag was an artistic work, Schwartz would have been in breach of copyright. Which probably felt about as good as hearing you came second in a two-person race.


What this case is indicative of is a change in the way that fashion companies are dealing with their intellectual property rights. Due to the time restraints (10 years), an ever-increasing amount of companies are attempting to claim intellectual property rights outside those afforded in the Designs Register. But just like trying to put the triangle block through the round hole, it isn’t always a great fit. Attempting to prove fashion articles like bags are “works of artistic craftsmanship” where functional considerations dictate the design will continue to a sore point for those trying to claim intellectual property rights over the bags. Further, any fashion works that use a ‘minimalistic’ design will also have an issue trying to prove artistic choices.


Improper registration of trademarks has also been proven to be an issue since the appearance of COVID-19; many brands attempted to register their trademarks under the newly created class of face masks. Several applications that should have been registered as designs were applied by brands trying to safeguard their trade marks; however, many of these should have been registered designs in the first place, which would not have been necessary.

Comments

Popular posts from this blog

OFF-BRAND - How a high-fashion brand and a local ice cream shop have come to blows over intellectual property

OFF-BRAND  How a high-fashion brand and an ice cream shop have come to blows over intellectual property In the various industries that are out there, not too many are as different as fashion and ice cream. One is involved in providing happiness, comfort and everything nice in this world and that other provides a sharp reminder that maybe that extra scoop of ice cream was too much. But suffice to say, a rift between the two industries is not something that you would expect to find.  But as hype culture and the obsessive fandom on the internet have grown, the industries have been growing closer and closer together. But sadly, not in the way you think, we are still a few years off wearable ice cream. Instead, there is now a good chance that your local ice creamery sells merchandise. Less impressive, for sure. But this has become a staple for restaurants with even just a modicum of goodwill attached to their name and why not? If customers are willing to pay an extra $50 so that people will

Green Eggs and Hamm

  Green Eggs and Hamm How a crotch shot of John Hamm and Dr Seuss have sparked the most intense debate on fair use dealing in copyright in the last ten years.  In 2013, John Hamm was in full swing, sipping cocktails and filming the wildly successful  Mad Men  however in years to come he may be remembered for something much more different. One uneventful day, John Hamm was photographed going commando and, thus changed how we see intellectual property rights on the internet forever.  Like all paparazzi photos, it was promptly uploaded to the internet and licenced for use. Unbeknownst to the photographer, the image was then used in an article by the Huffington Post, titled "25 Things You Wish You Hadn't Learned In 2013 And Must Forget In 2014." The writer of the piece turned the photo into a humourous GIF with the intention of mocking people who would want to see the picture and satirising the idea that it was news at all.  The photographer later registered the photo's

False Promises and Virtue Signalling - How to Get Away with Slacktivism in a Corporate World

False Promises and Virtue Signalling - How to Get Away with Slacktivism in a Corporate World  On the dark streets of Gotham one light shines through the darkness, one symbol for apathetic support of issues in search of personal gain, criminals cower… (well at least initially) at the sight of the 'Virtue Signal'. Virtue signalling has become an ever-increasing issue as we become more and more connected via online platforms. Because of this increased connection, there is a more significant amount of pressure on people to have something to say resulting in a churn of meaningless and self-serving support of issues which never amount to more than a Facebook post. This has been copied in the business world as well as companies realised quite quickly that there is a financial benefit to having your brand being associated with supporting an issue. Mind you, not actually doing something about the issue but merely being associated with doing something and there is a clearcut difference b