1.

1 INTRODUCTION

The copyright act 1957 under section 13 addresses that copyright subsists in original literary,
dramatic, musical and artistic works. It is a precondition that, to have a copyright on any work it
should be original in nature. The word ‘artistic work’ used in the copyright act is liberally
interpreted and includes a painting, a sculpture, a drawing (which includes a diagram, map, chart,
or plan) an engraving, or a photograph, whether or not any such work possesses artistic quality.
Further more, artistic work also includes works of architecture or any other work of artistic
craftsmanship. Originality in this context means that the work should originate from the author.
As far as painting, sculpture, drawing and photograph is concerned the author must have
bestowed skill, judgment and effort upon the work. Once an author gets a copyright on any work,
he gets some exclusive rights with regard to that work. They are:

1) The exclusive right to reproduce the work.

2) To communicate the work to Public.
3) To issue copies of the work to public.
4) To include the work in any cinematograph film
5) To make an adaptation of the work.

The blatant copying of work that has commercial value is potentially no less damaging to a
claimant than the copying of a great work of art. In such circumstances, and in the absence of
any developed law of unfair competition on which to found a judgment in a claimant's favour,
there has been an understandable tendency for courts to press the law of copyright into service
even if this results in a widening of its application. The clearest manifestation of this is to be
found in the oft-cited and widely accepted maxim: "what is worth copying is prima facie worth
protecting". 1Whilst the impact of this approach is to be seen in matters relating to originality and
infringement, it has also tended to distort definitions and meanings. 2 A leading judge in the
Patents Court has recently commented that the law has been bedevilled by attempts to widen out

1
. Per Peterson J. in University of London Press v University Tutorial Press [1916] 2 Ch. 601, at p.610; cited with approval in
Ladbrook (Football) Ltd v William Hill (Football) Ltd [1964] 1 W.L.R. 273, per Lord Reid, at p.279 and Lord Morris, at p.263.

2
Note in respect of the definition of "sculpture" the comments of Whitford J. in J. & S. Davis (Holdings) Ltd v Wright Health
Group Ltd [1988] R.P.C. 403, at p.410 and in respect of copyright in design documents, the comments of H. Laddie, P. Prescott,
M. Vitoria, A. Speck and L. Lane, The Modern Law of Copyright (3rd ed., Butterworths, London, 2000), at pp.180-181.

1
the fields covered by the Copyright Acts.3 This article, through a process of conceptual analysis,
maps the extent to which this bedevilment has altered the understanding of, and the meaning
attached to, the term "artistic work".
The starting point is an examination of the technical approach to definition, under which
copyright works are categorised according to the way in which they are made. The law has long
applied such an approach to literary works; "literature" being defined simply as the product of
writing. The application of a technical approach to defining "artistic works" only became fully
enshrined into the law following amendments made by the Copyright Act 1956 which, in this
respect, implemented the recommendations made by the Gregory Committee. 4 The approach,
under which something is determined to be "artistic" according to the way in which it is made,
remains at the heart of our current understanding of what is meant by "artistic works". Works of
drawing, painting etc, whether utilitarian in purpose and irrespective of any question of artistic
merit, are thus protected as members of this class.
The application of the technical approach has not been without difficulties and, in particular,
courts have disagreed over the proper categorisation of electronic circuit diagrams. These
difficulties serve to expose the superficial understanding and consequential misapplication of the
technical approach to defining artistic works that has hitherto characterised copyright law. The
technical approach to definition is useful only in so far as we are able, with a reasonable degree
of certainty and precision, to identify what technique is used to produce a particular work. Thus,
although the way in which a particular work is made can be used to define what type of work it
is--for example, we can say that the technique of drawing results in a drawing and this is an
artistic work--this definition is of limited utility unless it can be explained what the technique of
drawing is and how this differs from, for example, the technique of writing. This is not merely an
academic exercise since how a particular work is categorised within copyright law is important
in determining the rights in that work.
Being able to recognise a product of drawing and differentiate this from a product of writing
seems, on the face of it, a straightforward exercise. The differences between words (as
components in a system of written language) and pictures seem obvious, even where both refer

3
per Laddie J. in Metix (UK) Ltd v GH Maughan (Plastics) Ltd [1997] F.S.R. 718, at p.722.

4
H.S. Gregory (Chairman), Report of the Copyright Committee, Cmnd 8662 (1952) (the Report of the Gregory Committee).

2
to the same subject-matter. Few people would have difficulty distinguishing between a picture of
an elephant and a written description of the same animal. But is it precisely because these
differences are perceived as obvious that copyright law's use of a technical approach to definition
has not been subject to serious scrutiny. Pictures and words are both two-dimensional marks or
inscriptions produced by the application of ink to paper and, to this extent, are made in the same
way. The only way to distinguish between the techniques of writing and drawing is to consider
how these marks and inscriptions operate to denote some object or event. Drawing in particular
on the work of the philosopher Nelson Goodman, what is argued here is that artistic works differ
from other forms of representation in that, whereas literary (and musical) works are capable of
being notated in a form which defines all the constitutive properties of such works, this is not
true of drawings, paintings and the like. Goodman's thesis is to be preferred over alternative
ways of thinking about the difference between words and pictures, not only because of the
quality of its reasoning, but also because understanding the technical approach to definition in
this way is consistent with, and indeed implied by, the rules on the subsistence of copyright.
As well as providing a solution to the difficulties in categorizing works such as circuit
diagrams, the ideas presented in this article invite a reconsideration of the status of plans and
engineering drawings as copyright "artistic works". The Gregory Committee took the view that
architects' plans should be thought of as "drawings" and accordingly recommended that, under
any new Act, they be re-categorised as artistic works. This recommendation was implemented by
the Act of 1956 and has been carried through into the current legislation. However, plans, and by
analogy engineering drawings, are not instances of "drawing" in so far as plans are notational
whilst sketches, paintings, etc are not. The expansion of copyright protection to cover the
products of industrial mass-production, via the recognition of artistic copyright in engineering
drawings, is a direct consequence of this superficial understanding of the character of artistic
works. Although this article does not go so far as to suggest that plans and engineering drawings
should be re-categorised within copyright law, it does suggest a way of interpreting the
provisions of the current Act which are concerned with limiting copyright protection in design
documents so as to reflect the notational character of such works.
The second major part of the analysis presented in this article challenges the view that the
technical approach to definition can be universally applied to all works that fall within the
category "artistic works". In particular, it is demonstrated that, notwithstanding the attempts by

3
courts to do so, "works of artistic craftsmanship" and "sculpture" cannot be defined technically
since neither of these sub-categories is susceptible to an approach to definition based on a
consideration of the ways in which they are made. In the case of the former this is because, even
if it were possible to specify a range of techniques that fall within the notion of "craftsmanship",
this is not sufficient to define such works since that craftsmanship must be "artistic". In the case
of the latter, the difficulty is that "sculpture" may be produced by any number of techniques,
none of which are unique to the production of sculpture as that term is ordinarily understood.
A better way to approach these particular types of work is to start from the understanding
that, independent of any artistic merit, both must display "artistic character". Drawing in
particular on the institutional theory of art developed by the philosopher George Dickie, it is
argued that the relevant "artistic character" is not to be found in any feature manifest in the work
itself, but is dependent on the work's position within a set of established social rules and
practices. Thus, "artistic character" in this context depends on whether an object is created within
or against the social background of the "artworld". Such an institutional approach, albeit in rather
rudimentary form, has been applied on occasion by the courts to define "sculpture". A
comparison between the rudimentary legal version of the institutional approach and the more
sophisticated and developed philosophical version reveal that in all material respects they are the
same. To this extent, the law can be said to be moving towards a definition of sculpture that more
closely corresponds to the ordinary meaning of that term and a more widespread application of
the institutional approach to definition would serve to curb the attempts made to widen the fields
covered by copyright.
Understanding that there is a distinction between "artistic merit" and "artistic character", the
latter being dependent on the social background against which a work is created, explains why it
is that courts have struggled to define "works of artistic craftsmanship" and suggests a solution to
these difficulties. Adopting an institutional approach to defining this category produces results
that are consistent with the legislative purpose underlying its inclusion within the scope of
copyright law, whilst avoiding the need for courts to engage in subjective assessments of artistic
merit.

4
1.2 A Technical Approach in Defining artistic Works

Motivated by a desire to absolve judges from making subjective assessments of merit and the
attendant uncertainty as to the subject-matter of protection, certain reforms made in the 1950s
were specifically intended to enshrine a technical definition of "artistic works" into the law of
copyright. These reforms were effected by the Copyright 1956 and followed the
recommendations of the Gregory Committee, which, in its report, noted that whereas in the case
of literary works, no criterion of literary merit was applied, the case law in respect of artistic
works was, at that time, contradictory.
"Literature", as the subject-matter of copyright law, is seen simply as the product of the craft
of writing.5 Literary character is thus determined by reference to the way in a work is made and
so "literary works" include all works that are written, spoken or sung, irrespective of whether the
quality or style is high.6 It follows that while an aesthetician may wrestle with the distinction
between the poetry of Keats and the operating instructions for a video recorder, the copyright
lawyer looks to the way in which a work is made and so defines both as works of literature since
both are written.7
Following this approach, the Gregory Committee recommended that the definition of "artistic
work" should to be read as referring only to the way in which the work is made and accordingly,
that any work of drawing, painting, etc. however utilitarian its purpose and even if thought to be
lacking in merit in the "fine arts" sense, should be protected. This, the Committee felt, would
help to reduce uncertainty as to which works were protected by copyright given that
"considerations of fine art lead to differences of opinion". The Committee went on to suggest
that this recommendation be implemented, partly by the classification of certain utilitarian
5
. This view of art is built on ancient foundations in that Plato and Aristotle both took the view that poetry was a craft, however,
as a means of defining what may be called "true art", this technical theory of art has been comprehensively undermined: see in
particular R.G. Collingwood, The Principles of Art (Oxford University Press, Oxford, 1938), at pp.15-29.

6
per Peterson J. in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch. 601, at p.608. The current
statutory definition of a literary work is any work that is written, spoken or sung other than a dramatic or musical work: C.D.P.A.
1988, s.3(1).

7
It should be noted that, although for copyright to subsist a work must be "original", judges have not construed originality in this
context as demanding the expression of original or creative thought. Rather, the notion of literature as craft is carried into the
approach taken to originality, and so what is required is that labour, skill and capital be expended sufficiently to impart to the
work some quality or character which the raw material did not possess. See, for example, the speech of Lord Atkinson in
Macmillan & Co. Ltd v Cooper (1923) T.L.R. 186, at p.188.

5
works, such as maps, plans and charts, as "artistic works", and partly by any new Act making
clear that all works made by the techniques of drawing, painting, engraving, sculpture and
photography were protected regardless of any artistic merit in the "fine arts" sense. Following
these recommendations, the 1956 Act introduced two subtle but profound changes to the
definition of "artistic work". First, maps, charts and plans, which under the 1911 Act were within
the definition of literary works, were brought within the definition of drawing and so re-
categorised as "artistic works". Secondly, the qualification that copyright was to subsist,
"irrespective of artistic quality" was introduced in respect of paintings, sculptures, drawings,
engravings and photographs, though not in respect of "works of artistic craftsmanship".
8
Although the 1956 Act has since been repealed, the provisions put in place following the
recommendations of the Gregory Committee and which attempted to enshrine a technical
approach to defining artistic works have been carried through into the current legislation. Under
s.4(1) of the Copyright, Designs and Patents Act 1988, "artistic work" is said to mean:
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
(b) a work of architecture being a building or a model for a building; or
(c) a work of artistic craftsmanship.
Thus, there is no attempt within the legislative definition to conceptualize "artistic works".
Rather, what is provided is a list of things which, for the purposes of copyright law, are
considered "artistic".9 Although the use of the word "means" would suggest that this list is
exhaustive, certain of the sub-categories are open and to this extent the class as a whole can be
seen as open. So, for example, the term "graphic work" is said to include:
(a) any painting, drawing, diagram, map, chart or plan, and
(b) any engraving, etching, lithograph, woodcut or similar work.
That there is a class labelled as "artistic works", implies some shared character possessed by its
membership which positions certain works within this class rather than within some other.
"Artistic character" is thus something distinct from literary, dramatic or musical character.
Possession of artistic character allows us to distinguish a pictorial representation of an elephant

8
Copyright Act 1956, s.3(1).
9
C.D.P.A. 1988, s.4(2). The definition of "sculpture" is even more open, being said to include "a cast or model made for
purposes of sculpture" whilst "photographs" are defined in terms of a technique, specifically: "a recording of light or other
radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is
not part of a film".

6
from the literary expression "is an elephant" and an exhibition of drawings from a musical
portrayal of that exhibition.10 This is important, since how a particular work is categorised
determines the exclusive rights enjoyed by the owner of the copyright in that work. Furthermore,
possession of "artistic character" may also distinguish between that which is the subject-matter of
copyright law and that which is not. For example, whereas artistic copyright subsists in
"sculpture", "works of architecture" and "works of artistic craftsmanship", it does not subsist in
all three-dimensional man-made artefacts.
It could be argued that the categorisation of certain types of work as artistic might not be
11
based on any essential quality but is entirely arbitrary or possibly teleological in which case
"artistic works" is a class which is best understood simply in terms of the description of its
members. Although this possibility must be acknowledged, the class is open, and we should at
least attempt to arrive at a definition capable of a selfselection of members if we are to make
possible necessary assertions relating to identity, equivalence or similarity between that which is
specifically included and that which is not.12 The remainder of this article is therefore premised
on the view that there is an essential quality or character for which the word "artistic" stands.
Given that the Gregory Committee recommended that the definition of "artistic work" be
read as referring only to the way in which a work is made, any search for artistic character must
have as its starting point a technical definition of "artistic work". Since a painting is clearly not
made in the same way as an engraving or photograph, this direction must be understood as
meaning that each individual type of artistic work is to be defined by the technique employed in
its production. So for example, a painting can be defined as the product of the application of
paint onto a suitable surface, an engraving as the product of the technique of engraving and a
photograph as the "recording of light or other radiation on any medium on which an image is
produced".
However, certain types of production are not so easily categorized under a technical
approach. The sub-category "graphic works" includes "diagrams" and in Anacon Corporation v

10
. Famously, Mussorgsky's song cycle Pictures at an Exhibition, was a musical series inspired by a memorial exhibition of
drawings by his friend Victor Hartmann.

11
In which case the categorisation would have as much to do with what consequential provisions (e.g. exceptions, special remedy
provisions) are intended to apply to that work as to anything else.

12
. It could be added that it would be perverse to place an arbitrary collection of unrelated types of production under the
descriptive label "artistic works".

7
Environmental Research Technology Ltd,13 it was accepted by the court that copyright subsisted
in an electronic circuit diagram as an artistic work but that in making a circuit board to the same
design, the defendants had not infringed the artistic copyright in the diagram because the
defendant's circuit board did not look like the claimant's circuit diagram. 14 The court went on to
hold that copyright also subsisted in the circuit diagram as a literary work, noting that under the
1988 Act, a literary work includes any work, other than a dramatic or musical work, which is
written spoken or sung and that writing includes any form of notation or code. A circuit diagram
could thus be a literary work, provided it was "written" in the sense of containing information
which could be read by somebody, as opposed to appreciated simply with the eye. 15
The idea that circuit diagrams enjoy a dual status within copyright law, being both literary
and artistic works, was challenged in Electronic Techniques (Anglia) Ltd v Critchley
Components Ltd. Here the court held that, whilst in some cases the borderline between one
category of copyright work and another could be difficult to define, this did not justify giving to
the author protection in more than one category and that the proper category must be determined
by reference to that which most nearly suited the characteristics of the work in issue. As to
identifying the proper category, the court offered the following guidance:
"It is commonly said that a picture is worth a thousand words. That does not mean that in
copyright law a descriptive picture is to be treated as equivalent to words. A person creating a
new electrical circuit has a number of ways of recording his design and communicating it to
others. He may choose pictures. He may choose words. Although they perform the same
function, they do so by different means. The former is by graphic means, the latter by literary
means. They do not fit in the same category for copyright purposes. The former is an artistic
work, the latter is better regarded as a literary work."16
A technical definition does not provide an obvious way of distinguishing between words and
pictures. Both of these means of denotation are the result of the application of marks onto paper:
marks that, individually or in combination, denote the same referent. The proponent of a
technical definition would define a painting as the application of paint onto a suitable surface,
but is it such if the paint is applied by a Japanese sign-writer? As we have currently understood

13
[1994] F.S.R. 659.
14
In so finding, the court expressed the view that what matters in relation to infringement of artistic works, particularly drawings,
is the reproduction of that which is "visually significant": [1994] F.S.R. 659, at p.662
15
. per Jacob J., [1994] F.S.R. 659, at p.663
16
. Per Laddie J., [1997] F.S.R. 401, at p.413

8
it, the technical definition of "artistic work" is only superficially valid. The way in which a
particular work is made does define what type of work it is: so, for example, the technique of
drawing results in a drawing and this is an artistic work. To the extent that there is a core of
settled meaning about what "drawing" is, then this definition has substance, however a penumbra
of uncertainty haunts the application of this approach to hard cases such as circuit diagrams.
How then might we act to lessen or remove this penumbra of uncertainty? Is there a means by
which pictures and words may be easily and reliably distinguished? What follows is an attempt
to answer these questions.

Each kind of artistic work as mentioned in the act shall be discussed substantively but before
that, there are two basic qualities any work should possess in order to qualify it to have
copyright. Both of them have been exhaustively dealt below.

1.2 (a) Originality

The copyright acts are not concerned with originality of ideas, but with the expression of thought
and in case of literary and artistic works expression of thought in print and writing. What is
essential is that the work must not be copied from another work but must originate from author.
In Macmillan and Co. v Cooper17 it was stated that “the question is not whether the materials
which are used are entirely new and have never been used before, or even that they have never
been used before for the same purpose. The true question is whether the same plan, arrangement
or combination of materials has been used before for the same purpose or for any other purpose.
If they have not then the plaintiff is entitled to a copyright, although he may have gathered hints
for his plan and arrangement from existing and known sources. He may have borrowed much of
his materials from others, but if they are combined in a different manner from what is in use
before, he is entitled to a copyright , but he does not thereby acquire the right to appropriate to
himself the materials which were common to all persons before so as to exclude those persons
from a future use of those materials but; then they have no right to use such materials with his
improvement superadded, whether they consists in plan, arrangement, or illustrations or
combinations for these are strictly his own. ”
17
AIR 1924 PC 75; 51 IA 109

9
There is always a distinction between the materials upon which one claims a copyright has
worked and the product of the application of his skill, judgement, labour and learning with these
materials which product though it may be neither novel nor ingenious, is yet the claimant’s
original work in that it is originated by him, emanated form him and is not copied.

What is the precise amount of the knowledge, labour, judgement or literary skill or taste, which
the author or any book must bestow in order to acquire copyright, cannot be defined in precise
terms. In every case it must depend largely on the special facts of that case, and must in each
case, be very much a question of degree.18 Two compilers covering the same area may produce
identical, or nearly identical street directories, two artists or photographers photographing a
particular object may produce nearly identical representations, but each is entitled to copyright
protection in his particular representation of the work in question.19

The degree of originality required for literary work for copyright protection is minimal 20 because
this reduces the element of subjective judgement in determining what work qualifies for
protection and gives protection to a person who expends labour, skill, judgement and capital in
producing the work.21

1.2 (b) Labour, Skill and Capital

It is necessary that to secure copyright for a product, labour, skill and capital should be expended
sufficiently to impart to the product some quality or character which the raw material did not
possess and which differentiates the product from the raw material. However, what is the precise
amount of knowledge, labor, judgement or literary skill or taste which the author of any book or
compilation must bestow upon its composition is order to acquire a copyright in it cannot be
defined in precise terms. It depends largely upon the special facts of each case and it is very
much a question of degree.22

In G.A Cramp and Sons Ltd. v. Frank Smithson Ltd. it was held that selection of some common
place tables in a pocket diary did not involve the exercise of any taste or literary judgement and

18
Ladbroke (football) Ltd. v. William hill (football) (1964) 1 WLR 273 at pp. 277-78
19
L.B Plastics v. Swish Products (1979) RPC 551 at p. 567
20
Jagdish Prasad Gupta v. Parameshwar Prasad Singh AIR (1966) Pat. 33
21
Intellectual Property by W.R Cornish, 2nd Edn. p 270
22
Macmillan v. Cooper (1923) 40 TLR 186 at pp. 188,190.

10
that such a compilation did not constitute original literary work. Lod Macmillan said that “the
sole merit which the respondents claim as entitling them to copyright is represented as residing
in the selection by them of the seven tables in question for publication in their diary. They
maintain that in choosing these particular seven tables they showed knowledge an skill and
expended labour sufficient to entitle the collection to qualify as an original literary work. Not
every compilation can claim to be an original literary work even in the pedestrian sense
attributed to these words by law. ”

In Ladbroke v. William Hill Lord Pearce held that “In each case it is a question of degree
whether the labour or skill or ingenuity or expense involved in compilation is sufficient to
warrant a claim to originality in a compilation. Applying those principles in the present case I
feel doubt about the plaintiff coupon is entitled to copyright. The plaintiff have been pioneers in
this field and had invented various bets and nomenclatures some of which have been adopted by
their rivals. ”

In determining whether a work is entitled to copyright protection their remains a rough practical
test that “what is worth copying is prima facie worth protecting.” This maxim was however open
to criticism that it proves too much. It is possible that entire mechanical labor might be saved by
copying something produced by copying entirely mechanical labour involving no skill when the
only question was whether the entirely mechanical labour which went into th earlier work was
relevant labour for the purpose of conferring originality in the copyright sense.23

2.1 COPYRIGHT FOR A PHOTOGRAPH

Although photographs have been the subject of statutory copyright protection in Indian law,
there is a surprising dearth of authority surrounding the subsistence of copyright in photographs
, and the principles governing infringement of copyright in photographs by reproduction. The
situation is more or less similar in, English law and it gives no clear indication of what
constitutes originality in the taking of a photograph, nor whether copyright is infringed when a
photographer imitates an earlier photograph. Since these questions are fundamental to the scope
of copyright protection given to photographs , a review and discussion of the relevant authorities
is overdue.

23
Cantor Fitzgerald International v. Tradition (U.K) Ltd. (2000) R.P.C 95.

11
2.2 Originality and the Subsistence of Copyright in Photographs

The position under the Copyright Act 1957 is that photographs are artistic works for the
purposes of the Act, irrespective of artistic quality. The Act of 1957 defines a photograph as "any
product of photography or of any process akin to photography, other than a part of a
cinematograph film'. The definition appear to include bromides, negatives, photogravures,
photolithographs, printed circuit boards, semi-conductor chips and even the screen of a television
receiver. The photograph must be an original artistic work for copyright to subsist.24
The author enjoys the sole and exclusive right of copying, engraving, reproducing and
multiplying ... such photograph , and the negative thereof'. From the beginning, however, the
standard of originality was minimal. If look into some English cases this issue was considered in
Graves' Case,25 where the applicant argued that an independent copyright could not subsist in
photographs of pre-existing engravings. In holding that such photographs were entitled to an
independent copyright registration under the Act of 1862, Blackburn, J reasoned that:
All photographs are copies of some object, such as a painting or a statue. And it seems to me
that a photograph taken from a picture is an original photograph , insofar that to copy it is an
infringement of this statute.26
Care should be taken in interpreting Graves' Case. In particular, the case might be taken as
authority for the subsistence of an independent copyright in a photocopy of, for example, an
existing drawing. A photocopy surely falls within the statutory definition of a photograph
contained in both the Act of 1956 and the Bill of 1988. Nevertheless, it is submitted that Graves'
Case is distinguishable on two accounts. Firstly, the state of photographic technology in 1869
was such that the taking of any photograph required considerably greater skill, judgment and
labour than the mere press of a button. Secondly, Blackburn, J found support for his reasoning in
section 2 of the Act of 1862, which provided that "nothing herein contained shall prejudice the
right of any person to ... represent any scene or object, notwithstanding that there may be
copyright in some representation of such scene or object'. This is a significant provision because
subsequent copyright legislation has been silent on the point.
24
. Copyright Act 1956, section 3(2); Copyright, Designs and Patents Bill 1988, clause 1(1).
25
. (1869) LR 4 QB 715
26
. Ibid., at 723.

12
 Blackburn, J interpreted the section to mean that, although it is unlawful to copy an existing
photograph or negative, to copy the subject matter of a photograph by taking another photograph
of the same subject matter is permissible. While this appears to be a correct interpretation of the
section, it is submitted that section 2 did not countenance the photographing of the engravings,
but only the photographing of the same subject matter depicted in the engravings. On the facts of
Graves' Case, infringement of copyright in the engravings was not an issue because Graves was
the proprietor of the copyright in both the engravings and the photographs .
Since recent copyright legislation has expressly disclaimed any requirement of artistic quality
for the subsistence of copyright in photographs , an argument can be made that the concept of
originality as applied to photographs requires only an absence of copying, unless, in view of
Graves' Case, some degree of skill, judgment and labour was needed to make the copy. A
difficult case is presented by snapshots. Considering the state of photographic technology which
is currently being marketed to consumers, the taking of snapshots arguably requires no skill,
judgment or labour at all, at least if we are to believe the manufacturers' claims. Will copyright
always subsist in such snapshots, provided that they are not copied?
As the question is without direct authority in English law, it is useful to consider the opinions
of the textwriters. Lahore states that "there is no reason why the most haphazard photograph of a
scene in nature should not be regarded as ""original" for copyright purposes'.27
On the other hand Sterling and Carpenter take the view that "the snapshot produced without
skill and labour or discretion in arrangement of the subject is unlikely to be considered as
protected by copyright'.28 Likewise, Copinger29 questions the subsistence of copyright in simple
snapshots of still scenes in nature, but does so with reference to passages from Bauman v
Fussell30 which are purely concerned with infringement. The subsistence of copyright in
Bauman's photograph was never in doubt. This problematic judgment is discussed further in the
context of infringement.
As a matter of principle, it is submitted that a minimum standard of skill, judgment and
labour should be imported into the concept of originality as applied to photographs . This is true

27
. Lahore, Intellectual Property in Australia: Copyright Law, Butterworths, 1988, at [2.5.135].
28
Sterling and Carpenter, Copyright Law in the United Kingdom, Legal Books, 1986, at paragraph 405.
29
Copinger and Skone James on Copyright, (12th edition, Sweet and Maxwell, 1980), at paragraph 108 .
30
(1953) [1978] RPC 485.

13
for other artistic works, including those works that are protected irrespective of artistic quality.31
While there may be no modern case of an artistic work being denied copyright for lack of
originality; the requirement of skill, judgment and labour operates as a useful de minimis rule to
exclude such unworthy productions as photocopies from coin-operated machines. It would seem
that the question of whether copyright subsists in a snapshot is one of fact and degree. Since even
the most advanced cameras require the photographer to make at least some selection of subject
matter, there must be very few photographs that would not qualify as original artistic works.
In English law under the Act of 1956, photographs are unusual in the scheme of Part I works
insofar as further questions arise as to who must exercise originality in creating the photograph .
The Act of 1956 defines the author of a photograph as "the person who, at the time when the
photograph is taken, is the owner of the material on which it is taken'. This will not, of course,
always be the photographer. Copinger has cited the statutory definition of authorship to argue
that the concept of originality as applied to photographs does not require any exercise of skill,
judgment and labour by the photographer.32 Admittedly, it would be absurd to expect any such
effort from the owner of the negative; nevertheless, it is submitted that for photographs, as for
every other Part I work, there must be an exercise of skill, judgment and effort by some person in
creating the photograph . The definition of authorship contained in the Act of 1956 is plainly
directed towards ownership rather than authorship. One of the significant reforms to be effected
by the Bill of 1988 is to define the author of a photograph as "the person who creates it'. This is
to be welcomed because it places photographs on the same footing as other artistic works, and
follows from a recommendation made in the 1986 White Paper33

Originality and the Infringement of Copyright in Photographs by Reproduction

The range of acts restricted by copyright in a photograph includes reproducing the

photograph in any material form. The statutory concept of reproduction requires only the
reproduction of a "substantial part' of the original work. Where an unauthorised print is made
from a negative, or a photograph is made of a photograph, the issue of infringement is simple.

31
This point is well made in the cases concerning artistic copyright in trade mark devices and labels: Tavener Rutledge Limited v
Specters Limited [1959] RPC 355 (CA); Klarmann v Henshaw Linen Supplies [1960] RPC 150; Charles Walker and Co. Limited
v British Picker Co. Limited [1961] RPC 57; Karo Step Trade Mark [1977] RPC 255.
32
Copinger, op.cit., at paragraph 108.
33
. Intellectual Property and Innovation (Cmnd. 9712) at paragraph 16.5.

14
Less clear is the case of a photographer who imitates an earlier photograph by using the same
subject matter, camera angle, lighting, film, shutter speed and lens aperture to arrive at
substantially the same result in a new photograph .
The leading English case on infringement of copyright in photographs is the Court of Appeal
judgment in Bauman v Fussell. The plaintiff, a professional photographer, had taken an action
photograph in colour of two fighting cocks. The defendant admitted to using a published
reproduction of the photograph as the basis for a painting. The photograph was an artistic work
within the meaning of the Copyright Act 1911, which granted the plaintiff the "sole right to
produce or reproduce the work or any substantial part thereof in any material form whatsoever'.
Whether the painting was a substantial reproduction of the photograph was a question of fact.
At first instance, the plaintiff had argued that the positioning of the fighting cocks was the
main element comprising the originality of the photograph , and since the defendant had copied
this, a substantial part of the photograph had been reproduced. There were, however, differences
between the painting and the photograph in the colouring and the use of light and shade.
Apparently relying upon judicial notice, the County Court judge made a crucial finding of fact
that the configuration and attitude of the birds were commonplace, and therefore the originality
of the photograph could be found only in the colouring and use of light and shade. These
elements had not been copied, thereby giving the painting an entirely different effect from that of
the photograph. The defendant was held to have produced a new artistic work which had used
the photograph only as a source of inspiration. As there can be no copyright in ideas,
reproduction was not established.
Since the Court of Appeal was not entitled to disturb the findings of fact by the County Court
judge, the question on appeal was whether the judge had misdirected himself in law. Some
confusion arose from the judge's having referred to two different tests at different points in his
unreserved judgment. Nevertheless, both Somervell and Birkett L JJ held that the test relied upon
by the judge was the correct test: was the painting "a reproduction or colourable imitation of a
34
substantial part of the photograph'? The alternative test, adopted from Lord Shand in
Hanfstaengl v Baines & Co. Ltd, was whether the painting had "reproduced the original in its
essential features, looking at it as a whole'.35 This test was rejected as being too favourable to
defendants. Its application might allow a defendant to reproduce a substantial proportion of
34
[1978] RPC 485 at 487 per Somervell LJ; at 489 per Birkett LJ.
35
[1895] AC 20 at 31 per Lord Shand.

15
another's work and yet escape liability because he has not reproduced the original in its essential
features.36 Somervell LJ also referred with approval to a passage from Brooks v Religious Tract
Society37 which stressed the relevance of whether the defendant had taken the "feeling and
artistic character' of the original in deciding the question of substantial reproduction. 38 In the
present case, his Lordship thought that the feeling and artistic character of the two works were
different.
Romer LJ in his dissenting judgment observed that much of the judgment at first instance had
been concerned with identifying those features of the photograph that were not reproduced in the
painting. While this inquiry would be relevant to deciding whether the painting had "reproduced
the original in its essential features, looking at it as a whole', his Lordship considered that the
trial judge's approach was irrelevant to deciding whether the painting was "a reproduction or
colourable imitation of a substantial part of the photograph'. In considering the latter question,
"the inquiry should be rather as to what has been reproduced than what has not'. The judge had
further erred in disregarding the configuration of the birds in ruling upon the issue of
reproduction, and there was no evidential basis for finding that the configuration and attitude of
the birds were commonplace. The plaintiff's work was, after all, an action photograph of birds
"and I cannot but think that the positions in which the camera caught them are of the essence of
the plaintiff's skilful presentation of that activity'. The judgment of the majority in Bauman v
Fussell has given rise to much confusion concerning the subsistence and infringement of
39
copyright in photographs. Both Copinger and Lahore40 have interpreted the judgment of
Somervell LJ as casting doubt upon the subsistence of copyright in snapshots of commonplace
subjects. Lahore, in particular, states that "the Court decided that copyright did not subsist in a
photograph of a cock fight where the photographer had not himself been responsible for the
ordering and arrangement of the subject'. With respect, this cannot be correct because Somervell
LJ explicitly stated that "it is not disputed that the plaintiff has copyright in his photograph'.
Moreover, the plaintiff was variously described as "a skilled colour photographer' and "a

36
[1978] RPC 485 at 488 per Somervell LJ.
37
(1897) 45 WR 476.
38
[1978] RPC 485 at 487.

39
Copinger, op.cit., at paragraph 108
40
. Lahore, op.cit., at [2.5.140].

16
photographer of the highest standing'. The passage relied upon by both Copinger and Lahore
reads, in full, as follows:
A man takes a photograph of a procession or the laying of a foundation stone. He, of course,
has chosen when and from where the photograph should be taken. The relative position of those
in the procession, or their taking part in the ceremony is not, however, his work, or his design, in
the sense in which the relative position of the figures on the ceiling of the Sistine Chapel was the
work and design of Michelangelo. The order and arrangement of the procession has been, no
doubt, carefully planned and designed by someone else. It is an individual's work that the Act is
intended to protect. I do not think that a painter who was minded to make a picture of the
procession, in his own style, would be committing a breach of copyright if he used the
photograph to enable him to get accurately the relative positions of those taking part. What he
would be taking would not be a substantial portion of the plaintiff's work. At the other end of the
photographic scale one can imagine a case where the photographer has made an original
arrangement of the objects animate and inanimate which he photographs in order to create a
harmonious design representing, for example, Spring. Here the design would be his work. The
position of the birds here is betwixt and between. It is, I think, nearer to the former than the latter
category.
It is submitted that the comments of Somervell LJ refer purely to the issue of infringement.
His Lordship was not doubting the subsistence of copyright in photographs where the
arrangement of the subject matter is not the photographer's doing. In such cases, the originality
of the photograph is not to be found in the arrangement of the subject matter, and an alleged
infringement which copies only the arrangement of the subject matter is no infringement at all.
Assuming, as the majority did in Bauman v Fussell, that the configuration of the birds was
commonplace and therefore formed no part of the plaintiff's originality, since the defendant had
not substantially reproduced the plaintiff's colouring and use of light and shade, wherein the
originality of the plaintiff's work resided, there was no infringement. It is submitted that the
majority judgment in Bauman v Fussell explains why copyright subsists in each new snapshot of,
for example, the Houses of Parliament as viewed from Westminster Bridge, and yet there is no
infringement of copyright in every previous snapshot to which the photographer had access of
the same view.

17
 For photographs, as for other literary, dramatic, musical and artistic works, the lower the
standard of originality, the more difficult it is to establish reproduction. Accordingly, it seems
reasonable to expect that if a photographer has expended significant skill, judgment and labour in
arranging the subject matter, camera angle and lighting in his photograph, then another
photographer who deliberately "recreates' the original photograph by assembling the same
elements ought to be liable for infringement. Although the point appears to be without direct
authority in English law, the question has arisen in United States law.
In Gross v Seligman41 a photographer posed a nude model and produced a work entitled
"Grace of Youth'. Having assigned his copyright in the photograph, two years later he placed the
same model in an identical pose and created a work entitled "Cherry Ripe'. The main differences
between the two works were that in "Grace of Youth' the model's face was in repose, whereas in
"Cherry Ripe' she was smiling and held a cherry stem between her teeth. The backgrounds in the
two works were also slightly different. Notwithstanding these differences, it was held that "the
artist was careful to introduce only enough differences to argue about', and therefore the second
work constituted an infringement.
Gross v Seligman was applied in the more recent case of Alt v Morello. 42 The plaintiff was
an advertising photographer who created a work depicting a pen and pencil positioned at an
angle on a dark grid against a dark background, with the tips of the pen and pencil in a yellow
circle lit from below. Within a fortnight of having been shown a portfolio of the plaintiff's work,
the defendant produced a very similar photograph in which the brands and the angle of the pen
and pencil were different from the original, and the circle was another shade of yellow. The
Court held that "while it cannot be said that Morello's photograph is an exact photographic copy
of Alt's photograph, it is no less an infringement where he studied Alt's setup and photograph and
recreated the work from memory'.43

3.1 COPYRIGHT IN ARCHITECTURAL WORKS

41
212 F 930 (2d Cir. 1914).
42
227 USPQ 49 (DC SDNY 1985).

43
Ibid. at 51.

18
Under the former Indian copyright statute, architectural plans were protected as ‘literary
works.’44 But, after the enactment of the new Act, copyright subsists in original architectural
drawings or plans, which come within the definition of an artistic work.

This copyright is infringed not only by reproduction of the drawings or plan itself, but by the
construction of a building or structure in accordance with such drawings or plans without the
consent of the owner of the copyright. But S. 52 (1)(x) provides an exception to it. According to
this provision, it is not an infriengement of the copyright in the architectural drawings or plans to
reconstruct a building or plans by reference to which the building or structure was originally
constructed if the original construction was made with the consent or license of the owner of the
copyright in such drawing or plan. This can be done even by engaging another architect to
supervise the construction.

The exclusive rights conferred on the copyright owner of a work of architecture are the same as
those for other artistic works.45 Under Sec. 2 (a)(ii) the adaptation of an artistic work includes the
convention of a work into a dramatic work by way of performance in public or otherwise. This
does not appear to be applicable to a work of architecture which is also an artistic work under the
definition. However, the making of a work of architecture involving rearrangement or alteration
by use of the original is an adaptation of the original work and would therefore, constitute
infringement of the work if done without authority from the original copyright owner.46

Under the Indian Copyright Act, 1957, a work of architecture means any building or structure
having an artistic character or design or any model of such building or structure.47 Publication of
an architectural work can mean only publication of its model. The making or publishing of a
painting, drawing, engraving or photograph of a work of architecture or the display of a work of
architecture is not an infringement of the copyright in the work, under Indian law.48

44
. See Braithwaite, Burn & Jessop Constr. Co. v. Trustees of the Port of Madras, 1956 Indian L.R. (Mad.) 486, 494 = (1956) 2
MLJ 486.

45
. Sec. 14 (c).
46
. P. Narayanan, Copyright and Industrial Designs, (Lucknow: Eastern Law House Pvt. Ltd., 3rd Edn., 2002), p. 234.
47
. Sec. 2 (b).
48
. Sec. 5(1)(s).

19
When an architect prepares a plan at the request of a client, the copyright remains in the
architect.49 The client is barred from reproducing those plans or any substantive part of those
plans either in the form of another form or in the form of a building itself, unless he has express
or implied license of the architect.50 But, when the architect charges the full fee for the work, that
fee should be taken to include permission to use the plans for the building of that very house. 51
The client is however, the owner of that plan.52

In a case, where the architects were paid full fee for preparing plans for erecting two houses on a
plot of land, the owners of the plot later sold the land to the defendants to whom they handed
over the plan as well. It was held that the plaintiffs had impliedly licensed the owners to use the
plans for the buildings on the site and the implied license extended to another architect employed
by the owners and also to a purchaser of the plot, but for no other purpose.53

Copyright protection has to be given to an artistic work such as a drawing or plan and not to the
ideas or concepts embodied in it. An infringing version has to be derived from the copyrighted
work.54 While considering whether a substantial part of an architectural drawing had been taken,
it is important and relevant to take into account whether there was a common stock of
architectural ideas which everyone was free to use and which no one was allowed to
monopolise.55

3.2 THE BERNE CONVENTION

As the debates surrounding the Paris and Berlin Revisions make clear, the national laws of Berne
member countries were never uniform with regard to architecture. That the 1908 revision was
approved by the delegations, even though several countries did not yet provide explicit
protection for architectural works, shows that Berne provides some flexibility to individual

49
. Gibbon .v Pease, (1905) 1 K.B. 810.
50
. See, Ajay Sahni, Lal’s Commentary on the Copyright Act, 1957, (Delhi Law House, Delhi, 4th Edn., 2006), p. 42.
51
. In Stovin Bradford v. Valpoint Properties, [1971] 3 All ER 570, the plaintiffs, in accordance with some agreement prepared
some plans for extending and rebuilding a factory. A diamond shaped feature, included in the plan, gave very pleasant shape to
the building. Later the plaintiff withdrew from the project. The incorporating of the diamond shaped feature in the building by the
defendant, without permission from the plaintiffs, was held to be an infringement.
52
. See, Blair v. Alan S. Tomkins, [1971] 1 All ER 464.
53
. Id.
54
. P. Narayanan, Copyright and Industrial Designs, (Eastern Law House Pvt. Ltd., Lucknow, 3rd Edn., 2002), p. 235.
55
. See, Jones v. London Borough of Tower Hamlets, [2001] RPC 407.

20
member nations.56

3.2 (a) Categories of works protected

Most Berne countries provide a list of protected works in their copyright laws, though these lists
are not necessarily exhaustive. Many track the Berne Convention, naming ‘works of
architecture,’ as well as ‘plans, sketches, and three-dimensional works relative to architecture.’
Others give a slightly different gloss to the Berne enumeration but maintain its broad sweep.

For example, in the United Kingdom, an artistic work includes “a graphic work . . . [and] a work
of architecture being a building or a model for a building.” Several countries use more general
language, such as “works of architecture,” “architectural plans and works,” or even the very
broad term “artistic works.”

If uncertainty remains as to whether the statutory language encompasses both structures and
works related to architecture, certain countries clarify the meaning of their statutory language in
subsequent sections, most notably in those delimiting rights and remedies. In many cases, when a
country’s “protected works” provision is read in conjunction with other statutory language, the
statute as a whole can be understood to provide that copyright subsists in structures, as well as in
plans, models, and other works relative to architecture. In some countries case law may add
additional support for this view57 or, as in countries with very broadly written statutes, case law
alone may provide this interpretation.58

The statutes of Brazil and Spain make no clear reference to buildings or structures, and one can
interpret their specific enumerations of works relative to architecture as intentionally excluding
structures. Spain, while amending its copyright law, recognized that this language does not
correspond with that of article 2(1) of Berne, but considered the difference ‘minor.’ A Brazilian
commentator on architecture acknowledged the vagueness, gaps, and imperfections of his

56
. Supra n. 16, p. 256.
57
. See, e.g., Ancher, Mortlock, Murray & Woolley Pty. Ltd. v. Hooker Homes Pty. Ltd., [1971] 2 N.S.W.L.R. 278, 288
(N.S.W.Sup.Ct.) (Austl.) (“unmeritorious use made by the defendant of the plaintiffs' plans and houses”); Meikle v. Maufe,
(1941) 3 All E.R. 144, p. 147 (Ch.) (both original plans and original artistic design embodied in a building are protected by
copyright).
58
. On the approaches to architecture by individual Berne countries, see generally J. Lahore, Copyright: Intellectual Property
Law in Australia, (Sydney: Butterworths, 1977), pp. 51-52, 127-28, 227-30; B. McLachlin & W. Wallace, The Canadian Law of
Architecture and Engineering, pp. 234-37 (1987); Copinger on Copyright, supra n. 26, pp. 101-10 (United Kingdom); Huet,
Architecture and Copyright, 88 R.I.D.A. 2, pp. 2-48 (1976) (France); Pontes Neto, Copyright and the Architect, 19 Copyright
248, pp. 248-53 (1983) (Brazil).

21
country’s copyright law, and his analysis suggests that copyright protection does not extend to a
building once constructed, but only to plans and their use.59 These two statutes are significant in
that they shed light on the broad range of acceptable interpretations and means of
implementation available to member countries under the Berne Convention.

3.2(b) Standards of Copyrightability

Although the statutes may indicate whether a category of works is protected, they rarely provide
much guidance in determining whether an individual work merits copyright protection. The
parameters of copyrightability are difficult to codify. Nevertheless, the statutes of several Berne
member countries provide general guideposts. For example, several countries define a building
as ‘any structure,’60 and their courts have given this term a wide application, finding both the
interior of a factory61 and a garden with steps, walls, and ponds,62 to be structures.

Because architecture involves both art and technical processes, the question of which features of
a building or plan embody copyrightable expression is especially difficult. 63 In attempting to deal
with this problem, member countries have taken a variety of statutory approaches. Pakistan
limits protection for architecture to those buildings or structures having “an artistic character or
design,”64 while Italy grants additional rights or advantages to authors of artistic architectural
works.65 Australia specifically rejects this subjective standard and extends protection to all
original architectural works whether “of artistic quality or not.” 66 Similarly, France and Bulgaria
protect works of architecture without regard to their function, merit, or purpose.67 The statutes of
most Berne countries are silent on the criteria for copyrightability of architectural works, but
insofar as they make no additional demands on the level of originality required, they seem to
59
. Pontes Neto, Copyright and the Architect, 19 Copyright 248, pp. 249-50, 253 (1983) (Brazil).
60
. J. Sterling & M. Carpenter, Copyright Law in the United Kingdom, p. 78 (London: Legal Books, 1986).
61
. Meikle v. Maufe, (1941) 3 All E.R. 144, 150 (Ch.).
62
. See, Vincent v. Universal Hous. Co., 1928-1935 MacG. Cop. Cas. 275 (U.K.).
63
. See, Huet, Architecture and Copyright, 19 UNESCO Copyright Bull. 14, p. 15 (1985).
64
. See, Art. 2(b)-(c), The Copyright Ordinance, 1962 [Pakistan] (official English text published in the Gazette of Pakistan,
Extraordinary, June 2, 1962, pp. 827-61 & Dec. 4, 1972, pp. 312).
65
. Art. 20, Italian Copyright Act.
66
. Sec. 10 (1), Act Relating to Copyright, and for Other Purposes, 1968.
67
. Hay & Hay Constr. Co. v. Sloan, 12 D.L.R.2d 397, pp. 401-03 (Ont.H.C.1957).

22
follow a simple originality standard.68 However, perhaps in response to perceived dangers in
applying an originality standard to a technical work of art, in India the Copyright Act,
additionally provides that copyright does not encompass any process or method. 69

The case laws of Berne member countries is, of course, more useful in discovering the import of
the bare statutory language. Early cases suggested that copyright protection hinged on the
architectural work’s artistic qualities and revealed the prejudices of the time by excluding works
with a utilitarian purpose. While these principles have not lost all force in recent cases, they
largely have been supplanted by the more general concept of ‘originality.’

Some Berne members statutorily limit protection to ‘original’ works, and their courts, either by
applying the statutory language or by arriving at the principle independently, help to define this
concept. For instance, one English court has emphasized that “original does not mean
completely new and inventive, but only that the work is original with its author, not servilely
copied from another.”70 Even a spare, modern structure can be protected, although its protection
may be more limited in that the architect might have to prove very exact and detailed copying.71

The statutes and case law of Berne member countries indicate that architectural structures are
widely, but not universally, accepted as copyrightable subject matter. Additionally, these sources
suggest that structures, like other works of art, are protectable if original. The question of who
initially can exercise the copyright in original architectural works is addressed in the following
section.

4.1 COPYRIGHT FOR A PAINTING, A SCULPTURE, A DRAWING AND ARTISTIC CRAFTSMANSHIP

The problem of applying a technical definition to "works of artistic craftsmanship" is

obvious. In the first place, no particular technique, such as painting, drawing or engraving, is

68
. Phelan, Copyright and the Architect, 109 Law J. 118, pp. 118-19 (1959).
69
. Sec. 13 (5), also see, Hay & Hay Construction. Co. v. Sloan, 12 D.L.R.2d 397, pp. 401-03.
70
. Chabot v. Davies, (1936) 3 All E.R. 221, p. 225 (Ch.).
71
. Supra n. 26, pp. 105-06.

23
specified as defining the types of work concerned. Rather, protected are the products of a range
of techniques, which have only in common that they are understood to be forms of
"craftsmanship". Rather than defining craftsmanship in terms of a particular technique or
techniques, courts have instead focused on the manner in which any particular technique is
practised. So for example, it has been suggested that a craft is "a calling requiring special skill
and knowledge--especially a manual art"72 and that craftsmanship presupposes "a special
training, skill and knowledge for its production" and implies "a manifestation of pride in sound
workmanship".73
There is a more fundamental difficulty in identifying "works of artistic craftsmanship".
Identifying something as the product of "craftsmanship" is not sufficient; for such a work to be
protected by copyright law, the craftsmanship must be "artistic". Given this added requirement, it
is unsurprising that the Act does not specify that "works of artistic craftsmanship" be protected
"irrespective of artistic quality". To do so would introduce an apparent contradiction in terms.
The category is thus inherently antithetical to any kind of technical approach to definition. Even
if one were able to specify the range of techniques embodied in the concept of "craftsmanship"
this would not be sufficient to define the category. It is unsurprising, therefore, that in George
Hensher Ltd v Restawile Upholstery (Lancs) Ltd, 74whilst the members of the House of Lords
unanimously rejected a claim that a prototype piece of ordinary commercial furniture was a
"work of artistic craftsmanship", they were unable to agree as to why and could not arrive at a
universally acceptable definition of this category.75
The various approaches put forward in Hensher v Restawile have been thoroughly
documented, reviewed and criticised both in the case law and academic literature. 76 The various
commentaries on this case argue that the difficulties associated with defining "works of artistic
craftsmanship" stem mainly from the fact that such works must be "artistic" and that courts of
72
Cuisenaire v Reed [1963] V.R. 719, at p.729, per Pape J.
73
. George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] A.C. 64, at p.91, per Lord Simon.
74
[1976] A.C. 64.
75
Each of their Lordships suggested an alternative approach to defining the category and no definition put forward proved to be
wholly acceptable to any other. Indeed, Lord Kilbrandon, at p.98, noted that each of their Lordships "rejected, or at least refrained
from adopting, nine solutions of the problem".

76
See for example the judgments in Merlet v Mothercare plc [1986] R.P.C. 115; Bonz Group (Pty) Ltd v Cooke (1994) 3
N.Z.L.R. 216; Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] F.C.A. 1059; and the commentaries
in Cornish (above n.81), at pp.390-392; Laddie, Prescott, Vitoria, Speck and Lane (above n.4), at pp.196-199; and D. Booton
"Legal Determinations of Artistic Merit. Works of Artistic Craftsmanship under United Kingdom Copyright Law," (1996) 1(2)
Art, Antiquity and Law 123.

24
law are ill-suited to make determinations based on subjective assessments of aesthetic quality. 77
Whether or not this is true, it rather misses the more fundamental problem that, unlike the
majority of copyright works, the category "works of artistic craftsmanship" cannot be defined by
reference to ways of making. Courts are thus forced into an unfamiliar territory where the
technical approach to definition has no utility. Understanding the problem in this way allows us
to draw certain parallels with sculpture.
Sculpture is not the product of one of the recognised "artistic techniques" nor is sculpting is
itself a way of making in the same way that painting or drawing are ways of making. Sculpture is
not a technique but is rather the product of a technique. Nevertheless, courts have attempted to
apply a technical definition by identifying a particular range of techniques involved in the
production of sculpture that define the category. Thus, in deciding whether carved wooden
models used in the production of the plastic flying toys Frisbees were sculptures, the New
Zealand Court of Appeal in Wham-O-Manufacturing Co. v Lincoln Industries Ltd 78, relying on a
number of dictionary and other definitions but, in particular, a definition suggested by the
authors of The Modern Law of Copyright and Designs, commented:
"According to ordinary acceptation a sculpture is the product of the art of forming
representations of things or abstract objects in the round or in relief by chiselling stone, carving
wood, modelling clay, casting metal, or similar processes."
Bearing in mind that the court sought to arrive at a definition that corresponded to the "ordinary
sense" of the term sculpture,79 this approach is problematic for two reasons. First, if sculpture is
defined so as to include only the products of chiselling stone, carving wood, modelling clay,
casting metal, or similar, then much modern sculpture would be excluded from the definition.
Sculpture as a concept underwent a radical transformation during the twentieth Century, a period
which saw profound changes in the nature and understanding of art in general. The production of
modern and contemporary sculpture involves a wide range of techniques extending well beyond
those of carving, chiselling, modelling and casting. Certainly in principle, and probably in
practice, it is hard to justify the assertion that modern sculpture can be produced only by way of
77
See, for example, Laddie, Prescott, Vitoria, Speck and Lane (above n.4), at p.196 and Booton (ibid) at p.137.

78
See, for example, Laddie, Prescott, Vitoria, Speck and Lane (above n.4), at p.196 and Booton (ibid) at p.137.

79
[1985] R.P.C. 127, at p.157.

25
a certain limited range of techniques. The technical definition of sculpture, as adopted in Wham-
O, is thus too exclusive: it excludes much of what is nowadays regarded as sculpture as that term
is ordinarily understood. At the same time, by including all that which is chiselled, carved or
cast, the definition includes much that falls outside the "ordinary sense" in which the term
"sculpture" is understood. None of these techniques is unique to the production of sculpture and
the problem is compounded if the products of the techniques employed in modern sculpture are
also brought within the definition.
There is, perhaps, a case for deviating from the ordinary accepted meaning of the word
"sculpture". The authors of The Modern Law of Copyright, whose definition formed the basis for
the decision in Wham-O, argue that since the Act provides that copyright subsists in a sculpture
"irrespective of artistic quality" and since in common acceptation a sculpture is supposed to have
some element pertaining to the fine arts, it follows that "sculpture" as meant in the Act covers
things which the layperson would reject as being such. 80 In support of this argument, they note
that a layperson, in the analogous case of "drawings", would reject an engineering blueprint as an
instance of an artistic work.
In sum, unlike the majority of "artistic works", "sculpture" cannot be defined by way of a
technical definition. Furthermore, given that copyright subsists in sculpture "irrespective of
artistic quality" any approach to definition must exclude considerations of artistic merit.
However, as acknowledged by the authors of The Modern Law of Copyright, in common
acceptation a sculpture is supposed to have some element pertaining to the fine arts. It follows
that, if the legal understanding of what is meant by sculpture is not to be extended far beyond the
meaning which that word has to ordinary members of the public, then any definition should
acknowledge that "artistic character" is a feature of all sculpture. The problems associated with
defining sculpture are thus the same as those associated with defining "works of artistic
craftsmanship". Neither of these types of work are susceptible to an approach to definition based
on a consideration of the ways in which they are made. Furthermore, both must display "artistic
character". In the case of "works of artistic craftsmanship" this requirement is explicit; in the
case of sculpture it is implicit. If there is a difference in understanding these types of works, it is
in the fact that, in the case of sculpture an assessment of "artistic merit" cannot form any part of a
definition, whereas in the case of "works of artistic craftsmanship" such considerations are not
80
. Laddie, Prescott, Vitoria, Speck and Lane (above n.4), at p.192.

26
expressly excluded. However, we should be careful not to overstate the importance of this
difference given that judges recognise the dangers in constituting themselves arbiters of artistic
merit.81
4.1 (a) An Institutional Approach in defining Artistic Craftsmanship

Above it was argued that the problems in arriving at a legal definition of "sculpture" were
essentially the same as those associated with defining "works of artistic craftsmanship". The
question remains as to whether an institutional approach to definition can also be applied in
defining "works of artistic craftsmanship" and, if so, what means is there to distinguish between
these types of work within the framework of an institutional approach. One way of making the
distinction is on the basis that a "work of artistic craftsmanship" must be the product of
craftsmanship whereas this is not necessarily true of sculpture. The utility of this distinction is
limited since, although sculpture need not be the product of craftsmanship as that term is
understood by the courts, in the majority of cases it will, in that its production will involve "the
application of special training skill and knowledge".
A more useful way of distinguishing between these types of work is based on the observation
that the artworld, as conceived by Dickie, consists of a set of individual artworld systems, each
of which contains its own specific artist and public roles. What is primary is the understanding
shared by all involved that they are engaged in an established activity or practice within which
there are a variety of roles.82 Thus, although both are constituent elements of the artworld as a
whole, sculpture and "works of artistic craftsmanship" should be viewed as distinct individual
artworld systems.
Within the sculpture system, the established activities, practices and roles that constitute the
system are recognised relatively easily and so can be readily applied in defining sculpture. In
particular, the roles of artist as sculptor and of the corresponding artworld public are well
established and understood. It is much harder to say the same of a "works of artistic
craftsmanship" system. Of the numerous approaches put forward in Hensher v Restawile, only
that of Lord Simon of Glaisdale could be described as an attempt at an institutional definition.
He observed that what prompted Parliament to give copyright protection to "works of artistic
81
. See in particular the judgment of Oliver Wendell Holmes in Bleistein v Donaldson Lithographing Company 188 U.S. 239
(1903), at pp.251-252 and of Stewart J. in Hay and Hay Construction Co. Ltd v Sloan (1957) 12 D.L.R. (2d) 397.
82
Dickie (above n.113), at p.91.

27
craftsmanship" was the influence of the Arts and Crafts movement, associated with the names of
William Morris, Ruskin, and others. His Lordship noted that the essence of the Arts and Crafts
ideology was that "art" did not mean merely, or even primarily, the fine arts. Rather the aesthetic
of the movement was concerned with fitness and propriety, in contradistinction to irrelevant
ornament. Lord Simon suggested that in addressing the question of whether an object was a
"works of artistic craftsmanship" it was necessary to ask whether it was the work of one who
was, in this respect, an artist craftsman? Lord Simon went on to observe that, whether an object
was a work of artistic craftsmanship was a matter of evidence, the most cogent of which was
likely to be either from those who were themselves acknowledged artist-craftsmen or from those
who were concerned with the training of artist-craftsmen.
Lord Simon's speech reveals two main problems in applying an institutional approach to
defining "works of artistic craftsmanship". The first arises because of the relation of the Arts and
Crafts movement to the understandings and practices established during the nineteenth Century.
As noted by Lord Simon, the Arts and Crafts movement was concerned with fitness and
propriety, in contradistinction to irrelevant ornament. Thus, within this movement, the core role
of artist was not distinguished from that of artisan and the core role of artworld public was not
distinguished from the public at large.
More fundamental is the difficulty of applying an institutional definition to modern
productions. There is no doubt that a work created within or against the background of the Arts
and Crafts movement, such as a tapestry produced by William Morris, is a work of artistic
craftsmanship. But, bearing in mind that the question of whether an artefact is a "work of artistic
craftsmanship" is one of fact, 83it could be argued that no contemporary artefact can be described
as such since the institutional background necessary for the creation of a "work of artistic
craftsmanship" no longer exists.
This problem only arises if the phrase "works of artistic craftsmanship" is construed as
composite phrase.84 If this category is to have a contemporary relevance then the better approach
is to consider the elements of craftsmanship and artistry separately. Adopting this approach, a

83
per Lord Morris, at p.82; Viscount Dilhorne, at p.87; Lord Simon, at p.94; and Lord Kilbrandon, at p.97.

84
As suggested by Lord Simon, ibid., at p.91, and followed by Drummond J. in Coogi Australia Pty Ltd v Hysport International
Pty Ltd & Ors [1998] F.C.A. 1059.

28
"work of artistic craftsmanship" can be defined as a work of craftsmanship that has been created
within or against the background of the artworld. Since this second element does not demand the
identification of any particular artworld system, such an approach to definition allows us to
extend the category so as to incorporate the works of craftsmen working in many different
media. One of the great strengths of an institutional approach is that it is highly elastic and can
accommodate any form of artistic creativity. As noted by Dickie:
"the artworld consists of a bundle of systems: theater, painting, sculpture, literature, music,
and so on, each of which furnishes an institutional background for the conferring of status on
objects within its domain. No limit can be placed on the number of systems that can be brought
under the generic conception of art, and each of the major systems contains further subsystems.
These features of the artworld provide the elasticity whereby creativity of even the most radical
sort can be accommodated. A whole new system comparable to the theater, for example, could
be added in one fell swoop. What is more likely is that a new subsystem would be added within a
system. For example, junk sculpture added within sculpture, happenings added within theater."
The sculpture system has a contemporary relevance because new subsystems have been, and
continue to be, added within the primary system. In contrast, the "works of artistic
craftsmanship" system, understood as the institution arising out of the Arts and Crafts movement,
has no such contemporary relevance. There is no doubt that what prompted Parliament in 1911 to
give copyright protection to "works of artistic craftsmanship" was the influence of the Arts and
Crafts movement.85 However, this does not explain the continued inclusion of this category in the
Acts of 1956 and 1988. The Gregory Committee, in recommending the retention of the category
"works of artistic craftsmanship" took the view that copyright protection extend to the works of
craftsmen working in many media, including silversmiths, potters, woodworkers,
handembroiderers and many others.86 Giving effect to these recommendations demands that
works of artistic craftsmanship be understood as works of craftsmanship created within or
against the background of any artworld system or subsystem.
An example of such an approach is to be found in Shelly Films Ltd v Rex Features Ltd,87 in
which the court expressed the opinion that the make-up and set-design in a film production were

85
See the observations of Lord Simon in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] A.C. 64, at p.90.
86
. See the Report of the Gregory Committee (above n.6), at para.260.

87
[1994] E.M.L.R. 134.

29
both fundamentally "artistic endeavours". It followed that, to the extent that they involved the
exercise of craftsmanship, the products of these endeavours could be "works of artistic
craftsmanship". A not dissimilar approach was adopted by Tipping J. in Bonz Group (Pty) Ltd v
Cooke88 who, called upon to consider whether handknitted woollen garments were works of
artistic craftsmanship, expressed the view that for a work to be so regarded, it must be possible to
say that the author was both a craftsman and an artist.
In both of these cases, an institutional approach is adopted in the sense of recognising that the
works under consideration must be made within or against the background of the art world,
within which film production and fabric design may be component systems. Since "works of
artistic craftsmanship" are not seen as the products of any specific art world system or sub-
system, the approach is highly flexible and capable of being applied to the works of craftsmen
working in many media.

5.1Conclusion

“Artistic works” have been interpreted by the courts very broadly which has been beneficial
to authors who produce original works, putting their substantial labour, skill and capital. it is
clear that that the way in which copyright law has been applied and understood is flawed. At the
heart of the flaw lies the predominant test of "artistic character", by which it is understood that
the term "artistic" is to be read as referring only to the way in which a work is made. In the
application of this test, lawyers have failed to identify the essential characteristics of the
techniques that determine the categorisation of copyright works. An understanding of the
different modes of representation, and the relationships between these modes and the objects or
events represented, have formed no part of legal decision making. Not only has this led to
problems in categorising productions such as circuit diagrams, notwithstanding that the way in
which a particular work is categorised is important in determining the rights in that work, but,
through the recognition of artistic copyright in plans and engineering drawings, it has also
opened the door to the expansion of copyright protection to cover the products of industrial mass
production. The same is true of the law's failure to appreciate the limits of the technical approach

88
. (1994) 3 N.Z.L.R. 216.

30
to definition which has generally been applied indiscriminately for fear of entering into
subjective determinations of merit. If properly understood and applied, the technical approach to
definition works perfectly well for the majority of works currently categorised as artistic and can
serve to demarcate the boundaries of protection with clarity and precision. However, if the law's
understanding of "sculpture" and "works of artistic craftsmanship" is not to be distorted beyond
any sensible meaning that has credibility outside copyright law, then it must adopt some
alternative and workable approach to defining these particular types of artistic work. In the case
of "sculpture", the application of the technical approach to definition has produced the absurd
result that the moulds to make Frisbees have been accepted as sculptures, whereas the status of
works by contemporary artists is questionable insofar as they are not made in "the right way".
Although recognising that a technical approach cannot be applied to "works of artistic
craftsmanship", courts have been unable to offer up some workable alternative with the
consequence that whilst there can be universal agreement amongst the members of the House of
Lords that a prototype piece of commercial furniture is not a "work of artistic craftsmanship",
there is no agreement as to why. That these types of work have proved so difficult to define in a
way that is consistent with the way in which they are ordinarily understood can be ascribed to the
fact that, by focussing their attention on the manifest feature of the way in which works are
made, copyright lawyers have overlooked the necessary characteristic of acquired status. It is
perfectly possible, and indeed the first tentative steps have been taken, to construct an approach
to defining these particular types of work based on their institutional status. Not only is this
approach workable, being reasonably clear and precise and demanding no subjective assessment
of artistic merit, but it produces results consistent with ordinary meanings and to this extent can
be used as a conceptual tool limiting the attempts to widen the field covered by copyright.

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