In Abraham Moon & Sons Ltd v. Thornber and others, the Patents County Court (“PCC”) in London held that a firm called “Art of the Loom” and its partners (“defendants”) had infringed Abraham Moon’s (“claimant”) copyright in “Skye Sage”. This decision is noteworthy because it serves as an example of how copyright law relates to the production of fabric designs.

Abraham Moon is a fully integrated woolen mill based in Yorkshire, famous for its high-end fabrics and clientele. Abraham Moon designed a fabric called “Skye Sage” in 2004 as part of the company’s new direction in selling furnishing fabrics. “Skye Sage” went to market in 2005 and quickly became a success. In 2010 Abraham Moon noticed Art of the Loom’s “Spring Meadow” fabric, which he claimed to be a copy of his own “Skye Sage”. It is important to note that Art of the Loom was selling its fabric to some of the claimant’s customers.

Abraham Moon brought an action for copyright infringement. The defendants denied infringement by arguing that the “Spring Meadow” fabric was designed independently of “Skye Sage”. Additionally, they contended that there was no existing copyright in “Skye Sage”; therefore “Spring Meadow” could not have infringed it in any case.

The Copyright Designs and Patents Act of 1988 s. 1(1)(a) stipulates that copyright subsists in original or artistic works. The Act defines “artistic work” as a “graphic work, photograph, sculpture or collage irrespective of artistic quality”. Further, s.16 and 17 of the Act require that copyright is infringed by reproducing the whole or a substantial part of a work in a material form, where the copying is without a licence, where the public is issued with copies of the work or where the literary work is adapted.

In this decision, the PCC found that the “Spring Meadow” ticket was an infringing copy of the “Skye Sage” one. Judge Birss found that the “Skye Ticket Stamp” was an original literary work within the scope of s. 3 of the 1988 Act and that a substantial part of it was reproduced and adapted in the “Spring Meadow Ticket”. However, the PCC ruled that “although the Spring Meadow ticket was an infringing copy of the Sky Sage Ticket Stamp”, the “Spring Meadow” fabric itself was not. In addition, Judge Birss found that the “Skye Ticket Stamp” was an artistic work within the meaning of s. 4 of the 1988 Act, best described as a “graphic work”. According to the PCC, “Spring Meadow infringes the artistic copyright because it reproduces the appearance of Skye Sage” on the basis that “the ticket is not simply a set of instructions which can be performed on a loom, it is also a record of an image and the image has been reproduced”. Judge Birss concluded on this issue that artistic copyright “should be a ‘content’ copyright and not a ‘signal’ copyright”. Finally, the PCC found that all the defendants orchestrated the copying of Skye Sage and therefore, ruled that all of them are liable for infringement of copyright.

In Canada, s.64.1(1)(d) of the Copyright Act stipulates that no “method or principle of manufacture or construction” is protectable. This follows Cuisenaire v. South West Imports Limited, [1969] S.C.R. 208 in which the Supreme Court found that the coloured rods manufactured by South West Imports Ltd using Cuisenaire’s book, “were not things in which copyright [could] be had”. More specifically, the Court reaffirmed the principle that “there is a clear distinction between the book which describes it, and the art or mechanical device which is described”. In rejecting that finished articles are reproductions of the literary work, the Court adopted the analogy cited in the Australian decision Cuisenaire v. Reed, [1963] VR 719: “everybody who made a rabbit pie in accordance with the recipe in Mrs. Beeton’s Cookery Book would infringe the literary copyright in that book.” Therefore, given the Court’s syllogism in Cuisenaire, it would be hard to imagine that a fabric design could be protected on the basis that a ticket stamp has a visual significance because skilled designers can visualize the instructions, although laymen cannot. It is my opinion that in a factually similar case the Canadian Supreme Court would reaffirm its previous decision and the principle that ideas, procedures or methods are not protectable under copyright law.

It is only a matter of time to see whether the clash of the tartans will be continued on appeal…

Georgios Andriotis is a second year law student at Université de Montréal.

Posted in Copyright, Design, Fashion Industry, Infringement, IP, Jurisdiction, Literary Works, UK, UK