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person who is familiar with the original work would recognise that the work is present in some way or other.


Why does it matter? Because, in the words of the House of Lords in Designer Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc) [2000] UKHL 58, taking a substantial part represents taking “a substantial part of the original designer’s skill and labour in coming up with the new design”. It is a designer’s skill and labour which is protected by copyright law.


But the inherent mystery of creative works means that quality can be just as hard to pin down. Similarly, artistic inspiration is not always readily attributable or explicable. Even if two works look similar, on a qualitative analysis, it is not necessarily because one artist has ripped off the other.


In Designer Guild, a well-known interior design company claimed that its Ixia pattern had been copied


74 | ukhandmade | Spring 2011


by another company. Though it was conceded that the alleged infringing pattern was not a facsimile, the plaintiffs pointed out the (many) similarities between the two designs. Naturally, the defendants focused on the differences and averred that certain elements (stripes, flowers) were too generic to have protection under copyright. This latter point was upheld by Lord Hoffmann, who said that “the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff’s work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author’s skill and labour as to attract copyright protection” .


In other words, providing that an artist is not profoundly lazy and does not just grab the lot, getting inspiration from another work and then producing something which exists in its own right will not constitute a breach of copyright.


Homage: This and other forms of explicit inspiration, are ostensibly problematic cases, distinct from those works with purportedly inadvertent similarities. By referencing another artist’s work - taking part of or all of it, or perhaps an artist’s unique means of expressing ideas like specific brushstrokes or colour combinations - and using it as an element in another new work, the original artist is deliberately, semiotically cited; homage is inherently and explicitly attributive.


At the same time, the fact that it is intended that an observer would acknowledge the antecedent work means that homage must involve some reproduction of that initial work. Is this infringement?


Copyright law is not an impediment to homage properly called (as opposed to a flagrant rip-off dressed up in fancier clothing). Homage can be legitimately effected by adopting similar techniques. Indeed, somewhat ironically the original


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