A replica Eames chair (Image via mastersofa59.com.au)

A replica Eames chair (Image via mastersofa59.com.au)

Patrick Cariou’s lawsuit against artist Richard Prince for wrongfully appropriating his photographs of Rastafarians into new artworks provided a benchmark for the role of copyright in contemporary art, though the case is still being debated in appeals. But how do those same issues impact the world of design, where knockoffs of iconic designs are omnipresent and it’s even more difficult to tell when inspiration becomes appropriation, and appropriation becomes infringement? Later this year, the British government plans on extending the copyright term for design, stretching the protected period from 25 years from when the creation was first marketed to 70 years after the death of the object’s creator. Could that policy impact the creative dynamism of design in the UK?

The new legislation is included in the Enterprise and Regulatory Reform Bill. Writing in Dezeen, columnist Sam Jacobs points out that the new law would effectively destroy the market for replicas of iconic furniture designs like the Le Corbusier lounger or Eames chair, copies which, since the original has passed out of copyright, are presently perfectly legal (larger furniture companies like Knoll, Vitra, and Herman Miller currently produce official replicas of the pieces). Jacobs points out that if design firms have a monopoly on their signature products for 70 years rather than 25, they will have little reason to innovate, instead endlessly capitalizing on the cultural worth of the big names they represent established by museums and scholars.

Vintage ’60s Eames chair (Image via deco-arts.be)

“Copyright’s expiration period creates dynamism in creative activity,” Jacobs writes. The 25 year period is enough for the company to earn back the costs incurred with the original design development, but not so long that any firm can rest on its laurels without worrying about others innovating on or pirating their design rights. The policy “suddenly pushes the whole of modernism back into private ownership,” according to Jacobs, making it harder for designers to creatively reuse the material.

True Eames LWC chair from Herman Miller (Image via apartmenttherapy.com)

The United States’s Copyright Term Extension Act of 1998 extended the copyright term limits well past even the UK’s new policy. Often called the Mickey Mouse Protection Act, since it kept the cartoon animal fully under the ownership of Disney rather than in the public domain, the 1998 ruling pushed copyright terms to 70 years after the author’s death and 120 years after creation or 95 years after publication for corporate authorship (applicable to Disney). The copyright extension did not apply to copyrights that had already expired.

The law clearly hasn’t killed design innovation in the United States entirely, but it may be a damper to younger entrants into the market. The policy in the US and the UK also has consequences for those who are neither designers nor consumers: In the Guardian, Oliver Wainwright reports that the law would mean “any book published that illustrates a work of 20th-century design will likely have to be edited and reprinted.” Lionel Bently, a professor of intellectual property at the University of Cambridge, gives an example: “If the BBC commissions a short film about the work of the Design Council, including images of designs made in the 1950s and 1960s, permissions will be required to broadcast the images.” It’s not just the furniture that would be impossible to copy; it would also be harder for ideas to circulate.

With the advent of open source and Creative Commons providing alternative systems for copyright management, it’s difficult to see why extending copyright terms further would do much to stop the eventual spread of piracy. 3D printing, with its ability to turn digital files into real objects, will give anyone the ability to replicate a physical design in their own homes completely outside of copyright. The copyright term for patents on new inventions in the UK and the US is just 20 years, a policy that encourages rapid innovation as firms compete to produce the best product or iteration of an idea. Though it would doubtless cause piracy problems, it is tempting to think that it would be nice if our aesthetic world were as constantly dynamic as the commercial sphere.

  • Related: Check out this cool guide on how to identify a true vintage Eames chair.

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Kyle Chayka

Kyle Chayka was senior editor at Hyperallergic. He is a cultural critic based in Brooklyn and has contributed to publications including ARTINFO, ARTnews, Modern Painters, LA Weekly,...

7 replies on “Will the UK’s New Design Copyright Law Kill Innovation?”

  1. Copyright etc was introduced to enable Creators to earn a living from their Creations whether written word, music, designs etc.

    In my humble opinion it would seem to make better sense that an exclusive period of copyright/design right was awarded and thereafter those replicating or creating derivative works paid an Imitation Tax / Inspiration Tax to the Creator based on a fixed % of net sales reciepts from income earned off of the back of the original works.

    It could therefore make the Original’s more valuable and sought after?

    Permission to reproduce would also need to be formally sought and not unreasonably withheld.

    And those not wishing to pay any % of their profit to the original creator should not use / copy their work, they should, errrr…… innovate!

    1. This is what lawsuits are for. Granted it is harder to ‘stick it out’ against a larger corporation, but it is entirely possible and if the claim is valid there have been substantial payouts. One that comes to mind quickly is the lawsuit between the twins and facebook; the twins thought their idea was stolen and were awarded an amount exceeding 100m USD. Another is the case of an small innovator against Sears; he sued claiming they stole his socket wrench design and won a few million.

      Now proving the intellectual property theft is not easy by any stretch, but the laws are very generous to the creator.

      1. John – those are exceptions to the rule. Most disputes don’t actually get pursued due to enfircement costs. I would wager that for every 1 success stiry there are 1000 plus not pursued ….

  2. As a developer and producer of original designs, it would be devastating if another company were to steal our ideas and technologies and sell them as their own before we had a chance to achieve market acceptance and a return on our investment. We invest a lot in R&D for our products.

    On the other hand, charging 10x cost on a production piece for decades because you are protected by infringement laws is a disservice to society and, quite possibly, to global culture. I agree with Jacobs that it also sends a message to the market that you are done innovating.

    In my opinion, innovators need to be protected for a period of time during which they can reasonably establish recognition for their ideas. During that time they should work on establishing a brand, a following, and a reputation for quality and service. They should also price their products on a cost-plus basis in order to achieve maximum market penetration for its class and to discourage would-be imitators.

    Finally they should continue to innovate and establish NPVs based on a 5-7 year life. Copyright protection should probably not extend beyond 10 to 15 years.

    Anyway, this is all moot because, as lawyers have told me, one needs only change a screw and they manage to evade infringement the law (in the design world anyway). In fact, this is where the law should focus; generalizing the parameters of a design rather than simply extending terms.

    So, keep in mind that good businesses are not based only on good ideas but on strong reputations and efficient execution.

    Keep innovating!

    1. Hey Shant,

      Thanks for the insightful comment. I do think the patent-like structure of having a short monopoly time is probably best. More competition, driving down prices and incentivizing good, affordable design is good for everyone involved, perhaps besides old, established brands operating off their copyrights.

  3. I
    applaud any law that aims to protect design(ers) however, as a creator and
    maker of original designs I am more concerned with big companies copying unknown designers changing slightly the idea,
    and taking credit of the design. There should be some protection for
    independent designers. I like to note that trade show organizers are not
    concerned about the amount of scouters sent by big companies to trade shows to
    photograph new designer’s products. After the shows such as Milan or ICFF you
    see big companies launching designs highly influenced by emerging designers
    products from the previous year, instead of approaching them to buy their
    design. During a show in the states a few years back I had forgotten my coat at
    my booth, and went back to get it and found a famous furniture brand employee measuring a sofa I was launching . A few
    years later they had launched a very similar piece just adding some clever
    features, but the central idea of the piece was there. Taking them to court is
    expensive and sterile, the case can extend for centuries, draining creativity and monetary rescources

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