If you believe that a competitor has made unfair use of your intellectual property, it is essential to obtain expert advice as soon as possible. Recently, a company that sold equestrian safety clothing failed in its High Court copyright infringement claim against a competitor.

The company sold high-visibility waistcoats and hat bands to be worn by horse riders, as well as neck bands for horses. It brought a claim against the competitor for infringement of registered designs and passing off. After the competitor was granted summary judgment, the company amended its claim to cover infringement of copyright in the products as works of artistic craftsmanship under Section 4(1)(c) of the Copyright, Designs and Patents Act 1988. The Court had to determine whether copyright subsisted in the products and whether the company owned the copyright in them.

The Court considered domestic case law on what constituted a work of artistic craftsmanship, as well as decisions of the Court of Justice of the European Union establishing that, for copyright to subsist, there must be subject matter which is original, in the sense that it is the author’s own intellectual creation, and which is expressed in a manner that makes it identifiable with sufficient precision and objectivity.

The case had been brought on the basis that features added to the products amounted to copyrighted works. The Court concluded that changes to the waistcoat and hat band were practical solutions, and the features added to the neck band were all functional improvements for better performance. None of the new features were works of artistic craftsmanship.

In case it was wrong to consider only the new features, the Court turned to whether copyright subsisted in the products as a whole. It found that the design features of the waistcoat were dictated by its function and were practical solutions to the problem of making a hi-vis jacket for a horse rider. The design of the hat band and neck band were dictated by their purpose and the shape they needed to be. They were not works of artistic craftsmanship.

Although those findings were sufficient to defeat the company’s claim, the Court also noted evidence that the designer had started creating the products before working through the company, and that the products were likely to have been designed in collaboration with the factories that made them. The Court concluded that, even if the products had qualified as works of artistic craftsmanship under the Act, the company would have failed to establish that it owned the rights in them.