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Difference Between Copyright and Design Right

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Lawdit Solicitors - Expert Author

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In the recent case of The Flashing Badge Company Limited v Brian David Groves (T/A Flashing Badges By Virgo And Virgo Distribution) Justice Rimmer provided guidance as to the dividing line to be applied when deciding whether a design is protected by copyright or design right.

One of the key issues governing this area is s51 of the Copyright, Designs and Patents Act 1988 (‘CDPA’). This states that:

“(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.

(2) Nor is it an infringement of the copyright to issue to the public, or include in a film or communicate to the public, anything the making of which was, by virtue of subsection (1), not an infringement of that copyright.

(3) In this section –

  • 'design' means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and
     
  • 'design document' means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise."
     
  • “it is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.”

The purpose of this is to ensure that any design which properly falls to be dealt with under design right is not apply to claim the extended protection offered under copyright.

The current case concerned whether or not s51 CDPA gave the defendant a defence in relation to a claim for copyright infringement in respect of LED flashing badges owned by the Claimant. It was stated at the outset that “A key feature of the design of each badge is that its outline shape follows, and is dictated by, the outline of the artistic design which forms the subject matter of the face of the badge.”

Counsel for the Claimant argued that this in considering whether an item is protected by copyright or design right “it is necessary to consider whether one is looking at the design of an article or of a copyright work which has been applied to that article.” He asserted that while the design or configuration of the badges, for example the shape and possibly the placement of the LED lights would fall under design right, the graphic work applied to the badges would fall under copyright as being artistic works.

Counsel for the Defendant attempted to argue that “none of the designs was a design for an artistic work for the purposes of section 51(1). Each was simply a design for something other than an artistic work, namely a badge, which is not an artistic work.”

Justice Rimmer held that although “the shape of the badge follows the outline of the design for the artistic work on the face of each badge” the graphic work was capable of existing independently of the badge itself. In this way the decoration could be separated from the design and as such could qualify for copyright protection as an artistic work. Therefore the defence under s51 CDPA did not apply to this element.


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2007-06-27 13:52:34 in Legal Articles

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