DO SUPERMARKETS IN DENMARK VIOLATE COPYRIGHTS?
Lately there has been quite a few stories about Danish supermarkets selling products that look like other popular designs. The designer Susan Liebe was recently in the media’s spotlight, as she claimed that the supermarket chain COOP sells products, which are almost identical copies of her confectionary tray and butter container. Both hers and COOP’s products are made out of white porcelain with text written on them.
It is further known, that supermarkets all over Denmark are selling chairs highly similar to the popular Charles Eames DSR chair, which makes it possible to get an Eames lookalike for a fraction of the price of the original.
So why is it that the supermarkets aren’t charged for violating a copyright protected work?
The products mentioned above are all protected under the Danish Copyright Act, which provides protection for the visual expression of a product, if the product can be categorized as a creation made through an individual and creating effort.
But how can you tell if this is the case for a product?
First, you have to leave out of account everything that has a technical function – like a chair has four legs, and a screw has a head. Then you look at what is unique for the product, and what parts of the products can be said to be an expression of creativity. If the entire design of the product is based on a technical function, there can be no copyright protection – but if creative choices were made in the process, originality is present, which means the product will be protected as a copyrighted work. The more creativity the better, as a high degree of creativity provides a stronger protection against similar products. What defines an expression of creative work for the specific product is an assessment from case to case.
For Susan Liebe, the creativity of the product lies in the font used on the porcelain, as the design of the porcelain itself is neither individual nor creative. For the Eames DSR chair, the individual creativity is found in the shape of the plastic seat and the design of the pin legs.
When established that a product enjoys protection as a copyrighted work, the crucial question becomes whether or not a similar product is a violation of the work – or if it’s simply inspired by the original product.
A one-to-one replica is of course a violation, but if the product is not an exact copy of the original, but only uses some similar elements of the design, it will have to be determined from case to case.
We have seen examples of cases that allowed the lookalike product to get quite close to the design of the protected product, but we have also seen examples where even a small similarity was deemed to be a violation of the copyright of the original. The fact is that this is very much a grey area.
To assess whether or not a product is violating a copyright protected work, you have to have a thorough knowledge of copyright. If you believe someone might be infringing your copyrighted products, or if you have questions about copyright in general, feel free to contact us.
By Martin Hoffgaard Rasmussen