Replica vs Original in the Design World

Inside the Ban on Copying Furniture Classics

/ by Edgar Tijhuis

It was probably the worst purchase of a simple piece of furniture ever. At least with the benefit of hindsight and judging from its consequences, though the furniture itself suited the desire of its owner perfectly. It’s 2011 and Samantha Cameron, the wife of the British PM, buys a copy of a designer lamp – a 1962's Arco lamp by Achille and Pier Giacomo Castiglioni – for £250 at Iconic Lights, instead of the £1,372 original from Heal’s and The Conran Shop. It ignites a fanatical campaign by Elle Decoration editor Michelle Ogundehin to give designers the same rights as other creatives. In a blogpost, Ogundehin describes her feelings rather explicitly: “That’s all we need, I thought, the endorsement of faux-furniture by the Prime Minister’s wife!” And she goes on: “As Samantha is a creative consultant (formerly Creative Director) to luxury leather label Smythson, I was appalled, surely she should know better? After all, the fashion industry is constantly bleating about the damage done to its brands by counterfeit goods?”


The campaign was called Fight the Fakes and would eventually, together with the fierce lobbying of Swiss design giant Vitra, lead to a change in the UK copyright law, extending the copyright protection of recognized designs from 25 years to 70 years after the death of the designer. It was supposed to put an end to the huge industry selling, for example, an imitation of the famous Eames lounge chair for £898 instead of £4,208 for the original; Poul Henningsen’s PH lamp for £150 instead of £584, Ludwig Mies van der Rohe’s Barcelona chair for £379 instead of £4,572, and Arne Jacobsen’s Egg chair for a mere £299 against the £3,996 for an original.


In an interview with Confessions of a Design Geek, Ogundehin summarizes her main arguments: “The thing that we’re arguing is that people who are copying them don’t have the right to do so, that copying is theft. You have to question how they make it cheaper, because some of it is through cutting corners, and therefore the consumer is being conned.” Similar arguments are used by the design industry and licensed manufacturers, for example the head of Vitra, one of the two authorized manufacturers of Eames products, who argues “Make no mistake, these are poor imitations of what are iconic designs, and there should be the same stigma attached to them as to buying a fake handbag, watch or DVD. The principle is no different.” And he further adds “The UK has become a Trojan Horse for the importation of copies into Europe.” Ironically, it was Charles and Ray Eames who originally aimed to design furniture that could be mass-produced and affordable for the general public.


After much delay, on 28 July 2016, a new law was passed in the UK, protecting the copyright of industrial design goods against copies of designs, including the granting of retrospective copyright protection to designs made prior to 1957, which were never copyrighted in the first place. The sellers of copies were still allowed, until 28 January 2017, to sell their existing stock of copies (or destroy them). A recent article in The Guardian sketches the far reaching consequences of the new law. Almost overnight, companies that had been trading legitimately for decades found that they would be committing a criminal offence if they continued to sell their stock, and faced a £50,000 fine and up to 10 years in prison. Meanwhile, consumers will have to wait up to 40 years for bestselling designs to emerge from the new copyright. Based on media reports and statements from proponents of the new law, it seems the UK went from a unique haven for copyists to a place where design enjoys the same effective protection as art, music or other products of creativity. Though this may sound logical and positive at first sight, the most interesting point is that it is not.


Other Creatives…


Part of the appeal of the argument to extend copyright to design furniture is the simplification by the Fight the Fakes campaigns and others, stating that all kinds of fruits of creativity are effectively protected by copyright, while designs of furniture are not. This sounds clear and, therefore, very unfair. The reality, however, seems to be rather different.


First of all, it fails to distinguish between replicas that do not exactly resemble the original and do not claim to be original, or pure copies of designs or other creative products that aim to deceive the buyer into believing that they are, in fact, originals. Noah Charney, author of the standard book on forgeries, The Art of Forgery, compares furniture with works of fine art and wonders if there should be a parallel between works of design and of fine art: “In the world of fine art, there is no objection, legal or moral, to one artist producing work that copies another, so long as there is no attempt at fraud: Copies, labelled as such and not mechanically, but hand-made, are considered acts of homage, rather than theft.” This shows that at least one group of creatives, fine artists, does not enjoy the far-reaching protection that designers demanded. To be sure, most replicas of design furniture do not seriously attempt to deceive the buyers. (Almost) everybody knows that they are not buying an original, not only because of the much lower price, but also because of the not fully identical designs, and often because of the evidently inferior quality. And because most replicas are labelled as such.


Secondly, not all “creatives” are granted copyright on their work. I recently discussed the possibilities of protecting the unique recipes of famous chefs with either copyright, patents or trade secrets laws, in an article for Fine Dining Lovers. Because, for a chef, a recipe can be as personal, unique and important as a book is for a writer. So one would assume it should have the same legal protection, right? A recipe as intellectual property?


Not quite. In the US, a landmark case on recipes was Publications International vs Meredith, about a book of yogurt recipes by a famous international brand. The court stated: “The identification of ingredients necessary for the preparation of each dish is a statement of facts.” The bottom line for chefs is that copyright hardly ever is of any use for them. And one could wonder what the difference is between the identification of ingredients that produce a unique dish, and the materials (in specific sizes, colors or shapes) and the techniques used to arrange them in a desired shape, that produce a unique piece of furniture (“unique” in design, but designed to be mass-produced in factories)? One could easily argue that the protection of design furniture is light years ahead of the protection of the unique recipes that may have taken a lifetime to invent, and which are handmade, not factory-produced...


A Vague law…


While all creatives are thus not equally well-protected, nor does the new law provide an all-encompassing, effective protection that poses a big risk for the companies that used to sell replica furniture, or their own creations inspired by classic designs (and those that continue to do so, despite the law). The Enterprise and Regulatory Reform Act 2013 contained a repeal of the controversial section 52 of the Copyright, Designs and Patents Act 1988, which gave less protection to manufactured goods than to unique or low-volume items, such as works of art. In 2016, the copyright law was finally adjusted, but much still remains vague. The law refers to artistic works which are industrially manufactured. The definition of artistic works includes “works of artistic craftsmanship.” A definition of a work of artistic craftsmanship is lacking, however. Thus, it is up to the courts to decide what falls under the new law and is protected by copyright. The buck has essentially been passed, through vague definition.


Furthermore, government guidelines with the new law explain that the law does not stop designers taking inspiration from previous works. The intent of the law is to stop slavish copies of existing artistic works. In other words, producing identical copies and substantially copying other artistic works. Designers are usually able, however, to base any new designs on the theme or ideas which underpin another work, as long as they do not copy a substantial part of another artistic work. So a duplicate of an Eames lounge chair is illegal, but a new lounge chair inspired by the Eames is okay (but with no clear definition distinguishing the two). There is no hard and fast rule to say how many changes make a modification to an artistic work acceptable. Under copyright law, you must not take a “substantial part” of the work, if you wish to avoid infringing copyright. A substantial part is not defined in copyright law, but has been interpreted by the courts to mean a qualitatively significant part of a work, even where this is not a large part of the work. But what is a “qualitatively significant part” of a chair and ottoman combo? Are you not allowed to bend the wood support? Not allowed to use black leather? Not allowed to have two armrests?


This raises serious doubts about both the effectiveness and the scope of the new legislation. In fact, one could imagine replicas that are clearly inspired by certain classics, but not slavish copies, remaining fully legal to produce and sell in the UK. And still vastly underpricing the originals, which is a key point that has been overlooked. Vitra assumes that the buyers of replicas, which can cost one-tenth of what an original goes for, will now splurge for originals. But how many people can drop four grand on a chair? And would the sort of person who can only budget for a £250 lamp really think to themselves, “The heck with it,” and buy the £1372 version? This law is unlikely to affect sales of originals much, if at all—it just means that the masses will buy something else within their price range, and be deprived of the designs that they admire.


A Unique Haven?


During the campaign, the UK was often portrayed as a seemingly unique haven for fake design furniture. Though such an image proved very effective in the campaign, portraying the UK as the destructive hole in the dike around the EU, or even of a much larger part of the world, it neglected the fact that the UK is not unique at all.


First of all, neighbor Ireland still has protection of only 25 years after a design was developed, instead of 70 years after the death of the designer. At the moment, a consultation is being held by the Irish government, considering bringing their laws in line with what has become the standard within the EU, but so far the law has not changed. If it is not changed, then replica companies will move, en masse, to Ireland. Furthermore, a quick internet search shows many other places in Europe where one can freely order copies of design furniture, for example a company in Spain that still sells replica Eames lounge chairs, stressing on its website this is fully legal under Spanish law.


Outside the EU, the US does not prove to be much better, from the designer’s perspective. Graeme B. Dinwoodie wrote in IPRinfo magazine, that “the US doesn’t have utility model laws, and it does not grant protection against slavish imitation: in the United States, that’s called free competition.” This means that firms can indeed approximate the designs of others, though without reproducing trademarked logos and, of course, without trying to pass them off as something they are not.


Has Brexit led to any changes in the laws that were just brought in line with EU standards? I asked Simon Ayrton, a partner at Powell Gilbert LLP in London, who explains: “With regard to Brexit, the uncoupling of UK legislation from the CJEU would in theory permit the UK to develop its own law in this area. However, there is unlikely to be much appetite for this, given the benefit of harmonization.” And with respect to Ireland, he continues: “My expectation is that if Ireland fails to amend its copyright legislation in accordance with its treaty obligations, the Commission might be expected take action.”


A Step Forward?


Though the above thoughts on the changed laws may suggest otherwise, the new law is clearly a step forward. It not only provides designers with tools to protect themselves against “slavish” copies, but also brings the UK in line with the rest of Europe, despite Brexit.


However, it also makes clear that the simplifications put forward by some activists, and by the design industry, often miss the point. All creatives are definitely not equal, and the scope of the law will probably, in practice, be far more limited than its proponents believe. While the UK walks the line, several other countries in the EU and beyond are still open for business for replicas, and undermine the strict rules elsewhere.


Finally, copyright is much more complicated than many argue, and is constantly developing. A recent case from Austria provides a telling example. According to a summary by Rainer Schultes, a hotel had placed copyright-infringing counterfeit Le Corbusier LC2 chairs in its lobby, and displayed a photo of them on the hotel website. The hotel was ordered to cease and desist using the counterfeit chairs altogether, by the Austrian Supreme Court, in the preliminary injunction in 2008. But in 2016, the Supreme Court decided the opposite, in the full-scale proceedings. Placing a copyright-infringing armchair in a hotel lobby does not qualify as “distribution,” but displaying a photo of it on the hotel’s website does qualify as “making available” under copyright law, and is thus against the law.


Are you still with me?

Edgar Tijhuis

studied Political Science, Law and American Studies at the University of Amsterdam. He received his Phd from Leiden University. His dissertation was published by Wolf Legal Publishers and is standard reading on transnational crime and art crime. Edgar Tijhuis is a visiting scholar at the Institute of Criminology in Ljubljana and regularly publishes in a range of journals.