Cut and run: avoiding categorisation and commonplace ideas in the medium of papercutting

Dorothea Thompson

Can you infringe copyright in a papercut? Apparently the answer is yes, as Katfriend and young IP enthusiast Dorothea Thompson (Davenport Lyons) explains:

"A well-placed paper cut can be one of the more painful occupational hazards of the office-dwelling IP practitioner [but also cats, explains Merpel]. But in the field of artistic works and copyright infringement, the effects of papercuts run deeper, as is apparent in the recent decision of the High Court of Justice of England and Wales in Taylor v Maguire, in a case for copyright infringement in works produced by the method of papercutting. 

The Claimant exhibits and sells her original artistic works under the name Folk Paper Art, including via a blog, Facebook page, and British crafting website Folksy. The Defendant produces papercut works with her teenage daughter. It was asserted that the seven works in question in this case were produced for the daughter's GCSE art portfolio, for personal enjoyment, and/or sold via craft fairs, as well as displayed on Facebook.

  

In her judgment of 3 December, District Judge Clarke helpfully set out the law in detail, in order to "assist the unrepresented Defendant, who did not attend the hearing, in understanding it". Two points of interest stand out:

(1) the lack of determination regarding the type of artistic work in question; and

(2) the lack of assessment of features 'commonplace' in current papercut works.

Lack of determination regarding the type of artistic work in question

DJ Clarke [hold on a second, IP hipsters: DJ stands for “District Judge”, not a cool disc-jockey you have not yet heard of] did not decide whether the works were drawings or graphic works – and said she did not need to make the distinction. It may appear obvious that a papercut, as an item of aesthetic appeal, falls under the general header of 'artistic work' - but this sounds dangerously like the “you know it when you see it” ‘elephant test’ condemned by the Supreme Court in 2011 in Lucasfilm v Ainsworth. 

In papercutting, the end result is produced by the contrasting effect of selective cut-outs, somewhat akin to woodcuts, or engravings.  However, the design is often drawn out first; all of the papercuts in the case were hand drawn before being hand cut (cf digital design and laser cutting, popular for example in fashion and homewares).

It seems right, therefore, that the papercuts in this case were viewed as graphic works, namely drawings.

But why was the judge reticent to label them? Why does it even matter?

 

In short - if a papercut was deemed to not fall within any of the categories of works listed in the CDPA 1988, the entire medium could effectively be excluded from copyright protection.  This seems somewhat unlikely/preposterous - but reflects the reality of the UK’s closed-list system, highlighting the difficulties in stretching the semantics of fixed labels to fit the rather less limited potential of the creative imagination. 

This is not of course the first time that the courts have wrestled with qualifying works. In the (in)famous case of Creation Records, the arrangement of a scene for a staged photograph (an Oasis album cover) was held not copyright-protected: it was neither a sculpture nor a collage.  Equally famously (and likewise enjoyed by IP students nationwide), Lucasfilm affirmed that a Star Wars helmet was not an artistic work: neither sculpture, nor artistic craftsmanship (neatly summarised, in its various Episodes, here). 

At European level, in 2011 the Third Chamber of the CJEU in Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury [also known as the BSA case, on which see here], held that a graphic user interface was not a computer program, and can be protected by copyright if it is its authors own intellectual creation – avoiding the problematic question of protectable works altogether.

These cases question whether, if the purpose of the closed-list is the holy grail of legal certainty, why judges are unwilling to slot works into the fixed categories? Is it simply that they are unable to? Such judgments can lead practitioners into the murky depths of peripheral rights, breach of confidence and the like - good for legal creativity, but uncertain for creators (and future claimants).

Lack of assessment of features 'commonplace' in current papercut works

DJ Clarke outlined the correct approach to be used in comparing artistic works, as that of Lord Hoffman in Designers Guild Ltd v Russell Williams (Textile) Ltd. She stated that during the initial visual comparison, the judge may disregard similarities on the basis that they are "too commonplace, unoriginal or consist of general ideas", before undertaking a detailed analysis of the works. 

There is, however, a noteworthy lack of discussion of 'commonplace' ideas in the decision: there is no mention of the provenance of modern papercutting, which apparently developed from seventeenth century European folk art. The medium is enjoying something of a fashionable renaissance as part of wider crafty/boho/shabby chic trends, but current interpretations appear to follow the traditional pastoral themes, using simplified silhouetted motifs of leaves, plants, flowers, birds, animals, and insects. 

There is a large and growing body of commercial artists and designers known specifically for papercuts, not least the ubiquitous Rob Ryan, and designs have fluttered well into the mainstream, appearing as greetings cards, wedding invites, bunting and the like, but also applied to non-paper media, such as clothing and textiles.  In this context, originality appears to arise from details in the specific execution, and it is this that DJ Clarke focused on, noting the Claimant's "signature topiary style". 

Also Matthew enjoys spending time creating
cute papercuts for his human.
But, please, don't ask him to clean
up afterwards

However, the Claimant also explained her influences, including aforementioned folk works, and Rob Ryan - suggesting that all papercut artists are “inspired by” him, the "papercutting God".  In this context, could specific elements of an artist's style become 'too commonplace', so that they are disregarded as unoriginal in comparison with derivative works?  Ultimately: could a disseminated style become 'generic' to the extent that it effectively loses copyright protection (akin to the issues with trade marks such as Hoover, Sellotape and Aspirin)?

With such an all-round defeat and well-explained judgment, plus an unrepresented Defendant, and various issues with the defence, it is very unlikely that this case will be appealed, so no further clarification will be given.  In the meantime, it seems sad that the Defendant's daughter, an apparently budding artist, has been implicated in copyright infringement … even before completing her Art GCSE.”

Thanks, Dorothea, for your analysis. This Kat is very fond of papercutting, both as a hobby and form of artistic expression, but is even fonder of issues pertaining to subject-matter categorisation and originality. With particular regard to the latter, she was almost shocked not to see any reference to the (in)famous Infopaq string of cases, and very much impressed by the confidence with which the DJ declared that originality under UK law is tantamount to "independent skill and labour" [so not even effort, as per the traditional (old) test?]. Where has the EU "author's own intellectual creation" standard gone? This is something on which this Kat will blog soon, so watch this space.