LEGALLY SPEAKING

DERIVATIVE WORK FOR THE PURPOSES OF REPRODUCTION - Paul Sugden

In previous articles we have discussed the issues of copyright and the elements needed to prove copyright infringement - being that a substantial part of the textile work has been reproduced without the permission of the owner (see previous articles on the website www.ggcreations.com.au/tafta/)

This issue comes up frequently in the textile industry as individuals can have similar inspirations to produce similar textiles without ever seeing the works of another individual. Remember when everyone was doing shells, and Boy Scout knots and even stripes!!! Each individual fabric designer can produce their own knots, stripes or shells, but what they cannot do is reproduce a substantial part of the other textile designer’s knots, stripes or shells.

The issue of substantial part looks at the quality of the material taken, not just the quantity of the material copied, and the issue of whether the amount is a substantial part is a question of fact (again previously examined, in other articles). Copying a substantial part has also been described as deriving a work from an original. What I would like to do here is to examine the issue that leads to a lot of confusion for textile creatives - the issue of “derivative work” for the purposes of reproduction.

In copyright infringement, reproduction of an original copyright work occurs when it is demonstrated that the textile work in question was derived from an original work by someone else. Derivation from the original is deemed to have happened when the original is observed and similarities occur that cannot otherwise be explained. Another way of saying this is that the second creator has been seen examining or in some manner observing the original work so as to give rise to there being a causal connection. This causal connection means the original was seen at an exhibition, rented out, seen at a performance, communicated, described or shown in some way to the person making the second textile work so as to enable that person to copy the original.

If there is direct evidence of seeing and reproducing the work, then this causal connection can be confirmed, but in the world of textiles there are so many works and designs that courts have inferred from the similarities being so manifest that it is unlikely that the individual could have independently created the second textile work.

This was the issue in Designer’s Guild v Williams [2000] 1 WLR 2416, where the House of Lords had to compare an original textile design named Ixia (roughly drawn pink and yellow stripes with flowers randomly scattered over the fabric) with a design called the Marguerite, that also had vertical stripes with flowers randomly scattered over the stripes and showing stalks and leaves. The two designs are pictured here and are very simple in concept.

It was judged that the Marguerite was derived from the Ixia, and that there was a causal connection, as it could be shown there were seven similarities between the two designs, in the form of the stripes and the form of the flowers and their positioning – to the extent that it negated that the Marguerite had been an independent work of the producer. Secondly the judge also noted that the Marguerite designer had attended the trade fair in 1995 when the original Ixia had been exhibited, and this enabled the designer to have had access to the original for the purposes of showing that there was a causal connection where the original work could have been observed and copied.

Finally the defendants’ story of how they produced their work was unconvincing. This meant that the court held the IXIA work had been substantially reproduced; the visual comparison of the two works also showed an objective similarity that could not be otherwise explained, other than by the fact that the second party had copied from the first. This decision is not an easy one for the textile industry as the design involved is a very simple idea, and a simple form of expression of the use of vertical lines with flowers scattered over the stripes.

The importance for a textile creative is that inspiration can be derived from previous works, but the inspiration cannot show so many similarities with the original work that it is considered a derivative work of the original. Using roughly drawn simple designs, 7-8 similarities can be sufficient to say the textile design was derived from the original work, even though they may only be a small percentage of the complete original work.

Similar designs have been made in the computer field when it was accepted that two-percent the same was an infringement of copyright in a computer program. However, using the concept of postmodernism, vast numbers of works can be copied to the point that everything is derived from previous work… Care still does need to be taken by textile creatives when producing their designs - the best advice, as always, is to use your own creativity - don’t be a copyist. The law rewards originality and punishes the copyist.