The English High Court has ruled that copyright does not subsist in three high visibility equestrian products – a waistcoat, an elasticated hat band and a neck band for a horse. It also ruled that, even if there was copyright protection, the claimant, Equisafety Limited, had not established ownership of the copyright works.
Equisafety brought the copyright claim after Woof Wear Limited displayed three products at a trade fair in 2022. Woof Wear accepted that if copyright subsisted, the products would infringe.
Artistic craftmanship
The judge said the claim was limited to features added to the products in 2019 and 2020 and the claimant could not rely on any earlier version of the products.
He found that none of the three works was a work of artistic craftmanship under section 4(1)(c) of the CDPA.
In particular, reflective piping around the Velcro tab on the waistcoat was a variation to a larger, pre-existing item. New logos and wording were functional improvements to improve visibility and were not protected either under the EU Cofemel approach or the older UK law: “The additions do not amount to a work of artistic craftsmanship because they were not the work of a craftsman.”
Similarly, LED lights added to the hat band in 2019 were all functional improvements.
Even if the entire items, rather than just the new features, were considered, the test for copyright protection had not been met. The judge said the waistcoat features respond to the requirements of the specific use in horse riding for which the waistcoat is intended, adding:
“These design matters are dictated by the function of the item and are practical solutions to the problem of making a high vis jacket for a horse rider. The features do not reflect the author's personality are not the work of a craftsman; they are solutions to design issues.”
The hat band and neck band were functional items dictated by form: they were not original in the sense of Cofemel and not works of an artist and craftsman under the CDPA.
Copyright ownership
Even if the works were protected by copyright, the claimant had not established ownership.
Due to changes in the ownership and organisation of the business, collaboration with third parties and lack of records of transfers of rights, the position on copyright ownership was unclear.
What does this mean?
What is and is not eligible for copyright protection has been a hot topic in recent years. The EU Court of Justice judgment in Cofemel (Case C-683/17), which still applies in the UK, requires that a work simply be an intellectual creation of the author. National law had set additional criteria.
In this case, at least, the judge was clear that the result would be the same whichever test was applied. That provides helpful clarity – though this issue is likely to continue to be debated if and when claimants seek to claim copyright protection for other products.
To find out more about the issues raised in this blog contact Rosie Burbidge