Anne Black copyright dispute - originality: how low can you go?

The IPKat is delighted to welcome this first guest contribution from Hanne Kirk of Gorrissen Federspiel, Aarhus (Denmark):

In June 2019, the Danish Maritime and Commercial High Court gave a landmark decision – at least from a Danish point of view – concerning the question of originality in the sense of copyright law. The dispute concerned a hanging flowerpot, a vase and a jar, all created by the Danish designer Anne Black and all made of clay and sold in various colours and sizes. As shown by the photos, the products were all characterized by a lean and simple design.

Anne Black’s products, including the three at the center of the dispute, are marketed and sold online (www.anneblack.com) and in high-end interior decoration shops all over Europe. The disputed products were designed by Anne Black in the period 2013-2014.

In 2016, Netto, a Danish discount supermarket operating in Denmark, Germany, Poland, Sweden, and previously in the United Kingdom, launched a hanging flowerpot, a vase and a jar of its own. These were marketed by Netto through its Instagram profile, as well as in Netto brochures. As shown below, the products were all rather similar to those designed by Anne Black, albeit with some differences like the look of the surface and the number of strings in the hanging flowerpot, as well as some minor differences with regard to the dimensions.

For years prior to the ruling, the dispute was heavily covered by the Danish press, partly incited by Anne Black herself and her very proactive approach to the claimed infringement, which she openly discussed in posts and videos published through her personal social media profiles. This meant that, even before the court hearing had been scheduled, a significant part of the Danish population had already formed very strong emotional opinions in favour of Anne Black, her products in general and in particular the three products concerned. The ‘David and Goliath’ syndrome was a reality.

Personally, this GuestKat is happy with the outcome of the case, and notes that it is a clear statement by the court that despite the lean and simple design, these functional objects were all considered “works of art” according to the Danish Copyright Act. On this basis, the similarity between Anne Black’s designs and Netto’s products led the court to conclude that Netto’s products constituted an infringement of Anne Black’s copyright.

In the grounds, we find words like “conscious choice” and “design choices” (made by Anne Black), and it is clear that these choices related only to very few individual design elements, all of which belong to the public domain, such as ‘the cylindrical shape’, ‘subdued colours’ and ‘grooves in the glaze’. Just like short literary works consisting of only a few (public domain) words are able to get through the needle eye of the originality threshold (11 words, cf. Infopaq), works consisting of only a few simple design elements may make it through as well.

Earlier Danish case law given between the 1960s and the 1990s sets out a rather high threshold of originality for products and phenomena in the field of implied art, industrial design, fashionwear and the like. This regime has been followed by what seems to be a rather narrow view on the scope of protection (cf. e.g. UfR 2014/954 H and U 2014/3539 H).

Such rulings are contrary to both the EU copyright directives and the case law of the CJEU. From the directives we know that originality is defined as “the author's own intellectual creation” and that “no other criteria shall be applied to determine the eligibility for protection.” As for the scope of protection, we know from Painer that copyright protection must “be given a broad interpretation”, and that “nothing in Directive 2001/29 or in any other directive applicable in this field supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works.”

There seems to be a growing convergence towards a standard based on “creative choices”, and according to case law from the CJEU, it seems that originality is a generally harmonized EU-wide term covering all kinds of works, including functional and mass-produced industrial products. In the words of PermaKat Eleonora Rosati, “whilst legislative initiatives have been limited, the CJEU has been acting proactively, establishing through its decisional practice the de facto harmonization of an important principle of copyright: the originality requirement.”

Quite in line with EU copyright law, the Danish academia has long been resistant towards the position of the Danish courts. In a comprehensive publication titled A Service Check of the Danish Copyright Act under EU Law. How Far is the Actual Reach of ‘Danish copyright’?, no fewer than five leading professors and one postdoctoral researcher from the University of Copenhagen conclude on this topic that the Danish Supreme Court was probably “at odds with EU law” in its 2014 decision (UfR 2012/129 H) with which the Supreme Court established significant requirements in respect of originality and artistic endeavour for fashion articles. Specifically, the case concerned a t-shirt by the famous Danish designer Jørgen Nørgaard. The position of these professors is rather clear: Danish case law is not compliant with the EU regulation on originality. The above-mentioned Supreme Court t-shirt decision has served as precedent in a number of cases. With the Anne Black ruling, this may now change.

Finally: the decision has been appealed. This GuestKat has her fingers crossed for Anne Black.