Cases presented on the Beijing Intellectual Property (IP) Court’s Case Bulletin webpage are worth reading, given that, since April 2015, the Court has been undertaking tasks as the national IP case guidance research base designated by the Supreme People’s Court of China. This post discusses one of the cases shown addressing the copyright issue in apparel design.
Trial at first instance
[Civil Judgement No. 33515 [2018], First, Civil Division, 0102, Beijing, of Beijing Xicheng District People’s Court]
The plaintiff, Beijing LINC chic Ltd. (LINC), and the defendant, Beijing Bosideng Ltd. (Bosideng), are both clothing companies.
LINC sells two down jackets designed by its employees, hereinafter referred to as ‘jacket L1’ and ‘jacket L2’, and owns the related design drawings (DDs) and proto samples (PSs). Bosideng also sells two down jackets designed by its employees, ‘jacket B1’ and ‘jacket B2’.
LINC sued Bosideng for copyright infringement, asserting that jackets L1 and L2 and their DDs are both works of fine art, while the PSs are graphic works.
Both ‘works of fine art’ and ‘graphic works’ are specific types of works under the Copyright Law of China (the CLC, 2010 Amendment). Similar to the UK, in addition to originality, works must belong to one of the specific types enumerated in the domestic copyright law. Notably, the relatively closed scope of the types of works in China will be expanded to ‘other intellectual achievements that meet the characteristics of works’ by Article 3(9) of the 2020 Amendment of the CLC, effective on 1st June 2021.
Can jackets L1 and L2 be protected as works of fine art?
‘Works of fine arts’ according to Article 4(8) of the Regulations for the Implementation of the Copyright Law of China (RI of the CLC, 2013 Revision), shall mean two- or three-dimensional works of the plastic arts created in lines, colours or other media which impart aesthetic effect, such as paintings, works of calligraphy and sculptures.
The Court of First Instance (CFI) opined that apparel products, e.g. jackets L1 and L2, in general, are industrial products. Over time, notwithstanding having developed more functions to complement the needs of various occasions and social identity, ‘ordinary’ apparel products are unqualified for copyright protection:
In essence, except for costumes specially designed for, e.g., stage performances, costume design competitions or other special occasions, that are of outstanding artistic quality and meanwhile taking no account of the functional attributes of ordinary costumes, the ordinary clothes are designed and produced for people’s daily wear and aesthetic style. Incorporating ordinary garments into copyright protection is detrimental to not only the development of the garment industry, but also the public interest of society.
The CFI then considered the following two questions:
1. Whether the overall appearance composed by the combination of the shape, the structure and the colours of the ready-made garments reflects the author’s individual arrangements and choices, and whether it is of aesthetic significance, which has nothing to do with the level of artistic value.
Upon trial, the CFI found both jackets L1 and L2 contain merely conventional design elements in down jackets, e.g. the hat and pocket zipper. From the angle of aesthetic significance, the CFI recognised the ‘undeniable certain sense of aesthetics brought therein’, yet the very existence of that ‘is not a sufficient condition for clothing being protected by copyright law’.
2. Whether its artistic beauty can be physically or conceptually separated from its functionality.
The CFI found the answer to be negative, considering ‘the designs on the garment are mostly for the realisation of the basic functions of clothing, e.g., easy to put on and take off, lightweight, warm and easy to use’ —the artistic beauty of the two LINC jackets cannot, in fact, be separated from their functionality.
Furthermore, the evidence presented by LINC also showed that their two jackets were mass-produced seasonal models, which prompted the CFI to find that it was ‘difficult for the public to purchase or cherish the two jackets as works of art’.
How about the design drawings and proto samples?
The CFI examined the DDs and the PSs and found that they satisfied the originality requirement. As for the particular type of work to which they belong, considering that they were both drawn for the purpose of clothing production, other than ‘bringing the enjoyment of beauty through the graphics themselves’, both of them are graphic works, not works of fine arts.
‘Graphic works’, according to Article 4(12) of the RI of the CLC, refers to ‘such works as drawings of engineering designs and product designs for the purpose of actual construction and manufacturing, and as maps and sketches showing geographical phenomena and demonstrating the fundamentals or the structure of a thing or an object.’
Graphic works particularly feature scientific beauty, in the realm of science.
Then, infringement of the right of reproduction and right of publication?
The CFI examined the alleged reproductions based on two aspects: (1) the reproduction between 2D graphics and (2) the reproduction from 2D graphics to 3D garments.
On aspect (1), for the comparison of jackets L2 and B2 on their DDs and PSs, considering that the time point for the creation of graphic works did not necessarily correspond with the proven time sequence of garments production, the sequential order of creating the graphic works was thus deemed uncertain. In addition, there was no evidence that the defendant had had access to the plaintiff’s 2D works at issue. In the case of jackets L1 and B1, although it was proven that jacket B1 was designed later than jacket L1’s first online order trading point of time, no evidence supporting the defendant had access to the DDs and PSs of jacket L1 was provided. Moreover, no substantial similarity between the graphics was found, and therefore, the claim was not valid.
On aspect (2), i.e., the production of 3D garments, which are not ‘works’, according to 2D graphics, the CFI found that it fell beyond the definition of reproduction under the CLC and thus no infringement was established. No further elaborations on this point are provided. However, a clear answer was provided by Article 52(2) of the first CLC (effective 1st June 1991) as follows:
The term ‘reproduction’ as used in this Law shall not cover the construction or the manufacture of industrial products on the basis of drawings of engineering designs and product designs, and descriptions thereof.
The article above was deleted from the subsequent amendments of the CLC. Many have considered the deletion as proof of the conceptual expansion of reproduction under the CLC. However, does deleting the relevant contents mean supporting the opposite? Probably not, from this Kat’s point of view.
In the circumstances of this LINC v. Bosideng case, since the very object per se being reproduced was 2D graphic works that feature scientific significance, the CLC’s conclusion was not unexpected then.
The alleged infringement of the right of publication was considered invalid as well since no evidence could prove that the 2D graphics in question had been made public by the defendant in any way whatsoever.
The Court of Second Instance, i.e. the Beijing IP Court, upheld the relevant judgement of the CFI. ([Civil Judgment No. 87 [2020], Final, Civil Division, 73, Beijing, of Beijing Intellectual Property Court])
Comment
By far, the CLC does not recognise the overall appearance of apparel products as one of the statutory types of works. The related protection is therefore not as convenient as, e.g. ‘creations of the seasonal industries of dress and articles of fashion’ under the IP Code of France or ‘applied art’ under the Germany Act on Copyright and Related Rights. To fulfil the international copyright obligations over the works of applied art, a compromise was offered by Article 6 of the Provisions on the Implementation of the International Copyright Treaties:
In the case of foreign works of applied art, the term of protection shall be 25 years commencing from the creation of the works.
The request for the incorporation of works of applied art in the CLC has been advocated by many in China for a long time but has still not been successful in the 2020 Amendment of the CLC. In judicial practice then, the original expression of the (domestic) ordinary overall apparel products must still be examined, first, by splitting the components of the product itself from multiple angles and then by analysing them one by one.
Photos courtesy:
Christmas kitten: TaoTie
Down jackets: The WeChat public account of the Beijing Higher People’s Court
Haute Couture kitten: Lichen
[Originally published on The IPKat on 4 January 2021]