Jewellery and Copyright Infringement: Is it Art or is it a Useful Article?

A watershed Canadian copyright case recently settled, leaving open the question whether jewellery is a work of art protected by the Copyright Act, as are paintings, music and works of literature, or whether it is merely a "useful article" with a utilitarian function. In the United States, the issue has been resolved "” jewellery is an artistic work and therefore entitled to copyright protection. In both Canada and the US, copyright has a significantly longer term than design protection. In Canada, the issue arose when a Canadian jewellery designer, Pyrrha Design Inc (Pyrrha) alleged that 623735 Saskatchewan Ltd (SpareParts) was infringing the copyright in Pyrrha's original jewellery by copying and offering for sale essentially identical pieces. The defendant argued that the claim should be dismissed because jewellery is a "useful article" worn on the body. Under section 64(2) of the Copyright Act, if more than 50 copies of a "useful article" are made, full protection under the Copyright Act is lost. The purpose of this provision was to ensure that where industrial design protection was available for an article, there was no overlap between the protection offered by industrial design legislation and that offered by copyright legislation. In response, Pyrrha argued that jewellery is no more functional than a painting on a wall or a sculpture adorning a lobby and, unlike a jacket or a pair of eyeglasses, it is not worn for any purpose other than aesthetic appearance. The summary judgment in favour of SpareParts granted by the Motions Judge was reversed by the Federal Court of Appeal. Writing for a three-judge panel, Justice Linden noted that, whether jewellery was a "useful article" for the purposes of copyright law had not previously been litigated, and it was therefore not clear that there was no relevant issue to be decided, which is a requirement for summary judgment. According to Justice Linden, the mere fact that jewellery is worn does not make it ipso facto a "useful article." Illustrating this point, the Court commented that while some jewellery items may serve utilitarian functions, such as tie pins or cufflinks, others may be purely ornamental and valuable only for their intrinsic merit as works of art. However, because the Pyrrha case was settled before a trial of the issues, a final resolution of the question in Canada will have to await further litigation. The Federal Court of Appeal ruling strongly suggests that, depending on the circumstances, original jewellery designs may be subject to copyright protection. For a news article from The Globe and Mail, visit: http://makeashorterlink.com/?Z270153FC For the full reasons for judgment in Phyrra Design Inc et al v 623735 Saskatchewan Ltd, 2004 FCA 423, see: http://decisions.fca-caf.gc.ca/fca/2004/2004fca423.shtml Summary by: Katharine McGinnis