The infringement relates to photographs of Le Corbusier’s iconic armchairs and sofas. The French court decision has implications for commercial photographers wanting to feature designer furniture (or other iconic designs) in their photographs. Not surprisingly, Getty Images is appealing the decision.

Is this decision a quirk of French IP laws, or could we find that it might impact on those of us who work elsewhere? To answer this question, we need to understand the basis of the French court’s ruling.

The complaint

According to the heirs of the original designers (Le Corbusier’s heirs), their “cult objects” have enjoyed considerable prestige, as works of undisputed originality and irreproachable quality. Reproducing these works of art – even in print – is not permitted without permission. This is particularly as the photographs concerned were used in advertising to promote a wide range of subjects without permission or acknowledgement of the copyright holders.

The legal argument went: the infringing photographs reproduced the “original” features or characteristics of the LC1 armchair, the LC2 easy chair, the LC3 chair and sofa, and the LC4 chaise longue (the elements of chromed tubular steel used as a visible framework of the furniture item). In so doing without permission or acknowledgement of the copyright owners, they infringed the rights of the owners. The court agreed.

How could this be?

Under the French IP Code (Article L112-2), all “works of the mind” are protected, whatever their genre, form of expression, merit or purpose.

To some extent, copyright laws in France are broader than elsewhere – applying to works such as perfumes and fashion shows, which would struggle to achieve copyright protection in other countries.

Likely or unlikely elsewhere?

Furniture items are most likely excluded from copy-right protection in many countries. However, there is scope for Le Corbusier’s heirs (and other designers) to successfully claim copyright infringement outside France – even though the hurdle to qualify may be set much higher.

In the US, for example, industrial designs (such as furniture) can be entitled to copyright protection, depending on the creative process and the ability to separate aesthetic from utilitarian elements of the design. In Magnussen Furniture v. Collezione Europa USA, the court indicated that “if … [a] design was a … work of art created merely for its expressive form … [it can] continue to be copyrightable even if someone … used it as a table”.

Applying the same reasoning, a US court held that the design of a mannequin in Pivot Point v. Charlene Prods was fully entitled to copyright protection because “the elements [of the design] … reflect the independent, artistic judgment of the designer … [the design is] as much the result of utilitarian pressures as aesthetic choices”.

Similarly, in the UK and Australia, “works of artistic craftsmanship” can enjoy copyright protection even if “industrially applied”. To qualify, there must be a significant degree of design choice relatively unconstrained by the function or utility of the article: see the Australian High Court decision Burge v. Swarbrick.

Arguably, the distinctive designs of Le Corbusier’s chromed, tubular steel frameworks were dictated by aesthetics as much as utilitarian pressures. On this basis, these objects could also enjoy copyright protection elsewhere – for example, in the US, Australia and the UK.

Reputation damage

The language of the complaint lodged in the French court also hints at another possibility. The heirs of Le Corbusier were concerned to prevent injury to the esteem attributed to Le Corbusier’s works and any “distortion of these works by the association created in the public mind between the works concerned and the products advertised”.

There are parallels in the language of the complaint with a recent case in Australia – although not in copyright. In Bodum v. DKSH Australia Pty Limited, the Federal Court held that a rival trader had engaged in misleading and deceptive conduct by reproducing the distinctive features of Bodum’s Chambord coffee plunger design. By reproducing the famous features of the iconic design, the replica traded off the vast and enduring reputation in those features, and the rival manufacturer engaged in ‘passing off’ and gave a false impression of an association with Bodum.

While this case concerned a 3D reproduction rather than 2D reproduction in photographs, it does suggest that designers of very distinctive designs can protect how reproductions (whether 2D or 3D) of their designs are used.

Too much or just a sign of the times?

To answer concerns that this is yet another illustration of intellectual property laws ‘gone mad’, these laws in fact are not new.

It is over time that laws are used, developed and applied to different circumstances. We have seen countries ‘massage’ the application of laws in the local environment to protect local industry – such as (apparently) the extension of the term of copyright to 70 years in the US to protect interests in the movie industry, as well as in France, with copyright laws that protect fragrances, fashion shows and designer objects.

You could say that the consequences are harsh. On the other hand, perhaps it forces us to be more creative – to put in that extra effort to innovate and create.  

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