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Designer Guild pattern was said to be inspired by the ‘handwriting and feel’ of Matisse. Lord Bingham noted this, further repeating that “there is no new thing under the sun”.


Thus, inspiration from one artist combined with some original expression should shield against an infringement action.


Zeitgeist: Then there is the altogether nebulous concept of zeitgeist, whereby the general environment (political, social, cultural) exerts a mysterious influence on artists, who then go on to create works which express similar ideas and take such similar forms as to be instantiations of a genre. In every day terms, fashion is nothing less than the zeitgeist made corporeal, with designers all producing items representing “key trends”. In this case, the source of inspiration is not only unlikely to be in the singular, but it is also probably immune to precise, pinpoint identification.


If the inspiration is itself broad, environmental, and thus difficult to define, it is even harder to prove that someone has taken a “substantial part”. Hitting upon the same ideas, reflecting the same circumstances, is possibly inevitable if artists are contemporaneous and since there might be limited ways to express those ideas it is also plausible that some forms of art will look rather similar.


In Designer Guild, Lord Hoffman set out a two-step test: 1. Is it more likely that the similarities (sufficiently close, numerous or extensive) are the result of copying rather than coincidence? 2. Then, do those similar features amount to a “substantial part”?


This might assuage any ancillary fears for similar works which seem to be the product of the zeitgeist. The burden of proof rests on the side claiming infringement to prove that it is more likely than not that the offending work took its inspiration


from a particular source, and that it appropriated a substantial part. These are two very problematic subjects for legal proof, and may be barely-surmountable hurdles.


The law is not intended to stifle creativity, rather to encourage the creation of original works by assuring artists, designers, writers, composers that the fruits of their labour are recognised and afforded protection in law. The courts are mindful of the tenet that copyright does not protect ideas, are gratifyingly conscious that artistic inspiration should be left largely unmolested by judicial decisions. Providing that an artist does not take a “substantial part” of another’s work and perhaps only adopts some similar techniques or expresses similar ideas, breach of copyright is unlikely to be proved.


“A Balancing Act” Illustration by Siobhian Carroll


Spring 2011 | ukhandmade | 75


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