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Wednesday, 26 July 2017

Copyright protection of minimalist furniture design

Cross Frame Chair (1952)
In a recent decision, the Swiss Federal Supreme Court had the opportunity to clarify the requirements for the "individual character" of (super) minimalist furniture design.

The Swiss artist and industrial designer Max Bill (1908-1994) designed among others in 1952 the "Kreuzzargenstuhl" (cross frame chair) and in 1955/1964 a bar stool (see pictures). These were produced for decades by the furniture manufacturer Horgenglarus.

After Max Bill's death in 1994, his copyrights in his works were passed on to the Bill Foundation, which entered into a license agreement with Horgenglarus. In 2001, the Bill Foundation terminated the license. Horgenglarus kept manufacturing and selling the cross frame chair and bar stool designed by Max Bill, arguing that they did not enjoy copyright protection under Swiss law because they did not have the necessary individual character to be considered "works" in the sense of copyright law.

Bar Stool (1955/1964)
The Bill Foundation sued for copyright infringement before the Commercial Court of St. Gallen and prevailed regarding the cross frame chair, but lost on the bar stool. The Commercial Court held that all elements of the bar stool were known at the time of its creation, that it did not create or significantly influence a style of furniture design (as the Supreme Court's case law seemed to require for copyright protection of furniture designs) and if in doubt, copyright protection for works of applied art should be denied.

On appeal by the Bill Foundation, the Federal Supreme Court reversed the decision regarding the bar stool. It restated that the degree of individuality (originality)  required for a work to have individual character depended on the degree of freedom the category of works permitted. If the degree of freedom was limited, even minor deviations from known designs could convey individual character. On the other hand, if the design was entirely determined by technical considerations, there was no room for individual character. For chairs and stools, the degree of freedom was quite large, certainly their form was not determined exclusively by technical considerations.

The lower court had erroneously applied a "mosaic" approach to the assessment of individual character. It was irrelevant that all the elements of Max Bill's stool - the round seat, the three legs, the angle of the legs - were known in the prior art (see picture). Relevant was the overall impression of the design. The individual elements had never been combined in the way Max Bill combined them. The work was unique.

The design was also not determined exclusively by technical considerations. While each element served a technical purpose, the same purpose could be served by other forms (e.g., a square instead of  a round seat).


Prior Art for the Bar Stool
The Supreme Court then "clarified" (overruled, really) its earlier statements that a furniture design needed to start or substantially influence a new style in order to enjoy copyright protection. This was not absolutely necessary as long as the design in question was more than a mere work of craftsmanship or industry and showed a degree of individual artistic design.

While the Supreme Court left open the question whether for works of applied art the bar for individual character should be set higher than for other works (because they could also be protected by registered designs), it appears pretty clear that the Supreme Court now applies the same (low) standard for individual character to works of applied art as to other works (see the BGH's "birthday train" decision).

While this decision concerns Swiss law, UK courts likely will soon have to grapple with the question when a furniture design is a "work of artistic craftsmanship" in the sense of the Copyright, Design and Patents Act 1988 after the repeal of section 52 CDPA.

Decision 4A_115/2017 of 12 July 2017.

Disclaimer: the firm I am working for represented the Bill Foundation in the proceedings against Horgenglarus.

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