Hensher (George) Ltd v Restawile Upholstery (Lancs.) Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE RUSSELL
Judgment Date04 Jul 1973
Judgment citation (vLex)[1973] EWCA Civ J0704-4

[1973] EWCA Civ J0704-4

In The Supreme Court of Judicature

Court of Appeal

Civil Division

On appeal from order of Mr Justice Graham

Before:-

Lord Justice Russell

Lord Justice Stamp and

Lord Justice James (Not present)

Between:-
George Hensher Limited
Plaintiffs
-and-
Restawile Upholstery (Lancs) Limited
Defendants

Mr J.N.B. PENNY. Q.C. and Mr W.B. SPALDING (instructed by Messrs Simpson, Silvertown & Co., Agents for Messrs Donn & Co., Manchester) appeared on behalf of the Appellants (Defendants).

Mr A. KYNRIC LEWIS and Mr HUGH LADDIE (instructed by Messrs Simmonds, Church, Rackham) appeared on behalf of the Respondents (Plaintiffs).

LORD JUSTICE RUSSELL
1

The Judgment I am about to deliver is the Judgment of the Court.

2

This appeal from Mr Justice Graham concerns an alleged infringement of copyright in suites of chairs and sofas manufactured by the Plaintiffs. The case may be divided under three heads. First: whether the prototypes of the Plaintiffs' Denver and Bronx suites were the subject-matter of copyright under the 1956 statute as being capable of being described as "other works of artistic craftsmanship". Second: if so, whether the particular circumstances of the production and construction of the prototypes deprived them of such description, if they might otherwise have filled it. Third: whether, if there was copyright in the Plaintiffs' prototypes, there was sufficient essential resemblance in the Defendants' products to justify the conclusion that there was in some form a copying.

3

We turn to the first question, whether the Plaintiffs' suites are within the phrase "other works of artistic craftsmanship" in section 3(l)(c) of the 1956 Act. The phrase originated in the 1911 Act. Section 1 of the 1911 Act provided that copyright shall subsist in "every original literary dramatic musical and artistic work". By section 35 it was provided that in the Act "artistic work" includes "works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs". Moreover, "architectural work of art" means "any building or structure having an artistic character or design, in respect of such character or design …. the protection afforded by this Act shall be confined to the artistic character and design …".

4

The 1956 Copyright Act deals in a separate section with copyright in artistic works: sub-section (2) provides for the subsistence of copyright in every original artistic work: sub-section (1) provides that "In this Act 'artistic work' means a work of any of the following descriptions, that is to say - (a) the following, irrespective of artistic quality, namely paintings, sculptures, drawings, engravings and photographs; (b) works of architecture, being either buildings or models for buildings; (c) works of artistic craftsmanship, not falling within either of the preceding paragraphs".

5

On this first question as to the Plaintiffs' products it is sufficient at the outset to give a brief description of the Plaintiffs' Denver and Bronx suites, and to notice only the settee, for the chair is simply in point of appearance the settee or sofa with a centre section removed. The Denver and Bronx each have what is described as the boat shape; that is to say that, looking at the front, the bottom edge of the seat is a line parallel to the ground substantially equal in length to the distance between the insides of the two arms: each arm is wide, the surface being horizontal, and overhangs laterally the ends of the bottom edge already mentioned. From each of such ends the line turns upwards at a marked angle from the horizontal to meet the vertical outside of the arm. This gives to some extent the impression of the profile of an old ship with a poop at each end. This is common to Denver and Bronx. Denver was raised above the floor by a leg at each corner. The Bronx, made later than the Denver, (a) had a sloped skirting or plinth of wood all round carrying castors supporting the settee and (b) a strip of wood trim (afrormosia) immediately above the frontskirting and at each end rising to follow the stern or bow line of the relevant poop as far as the beginning of the vertical.

6

A Mrs Watney, who gave evidence for the Plaintiffs, had been the principal buyer of furniture for the Times Furnishing Company. We quote some passages from her evidence. Of the Bronx she was asked at Volume 3, page 38: "What particular features of the design struck you as being characteristic, or outstanding? (A) Well, I thought the shape of it, the boat-shape, the trimming of the afrormosia and the nice wide arras that acted as another seat for people in houses today. They could buy that one settee and one armchair and save themselves money, because they had, sort of, seats on the arms. (The Judge): When you say 'that is the trimming of the afrormosia', you mean … (A) The facings. (Q) Yes. You mean the use of the afrormosia as a trim? (A) Yes, It gave a strong look to the settee. (Counsel): How about the base? Did you have any views on the base? (A) Well, I thought the base was nice. I thought it was perhaps a little bit narrow, but it did not matter. It was solid. It was good". Of the Atlantic, which is the Bronx with a different and diamond set of buttons on the face of the back, she said on the same page: "I saw the Atlantic. I went into the factory and I said to Mr Hensher, 'It is a wonderful suite; it's horrible, it's vulgar and it's brash, but I am afraid, unfortunately' - and I meant unfortunately - 'the young people will go for it' because I thought, as a description, it had wide arms, which I said would make an extra seat, it was a good four-seater, and at that time the price was right". She also said this (in contrast to her own ability to strip down an upholstered settee to check on its"innards", which she would do to protect buyers): "You see, young people buy on looks, unfortunately, and on what appeals to them - on eye appeal": see Volume 3 at page 40B. At page 42G she said: "There have always been wide armed suites made, but the shape of the (Bronx) was new. It was very flashy. It was horrible, really". In comparing the Denver (and the Plaintiffs' similar Florida suite) with the Bronx, she said: "I think it is more eye-appeal on this suite (i.e. the Bronx). I think that the Denver and Florida suites lock quite different - flimsy. In my opinion, when I saw the Atlantic or Bronx, it was quite different. Big". That is at page 44B. Later, of Denver and Florida, she said: "I thought they were good. … They were attractive. They were 'with it'. … The Denver and Florida were definitely different types of suites, with wider arms; the trend that was coming in".

7

We have given these extracts from Mrs Watney's evidence because we think her evidence goes no further than to show that the buying public would favour the Bronx, or before it the Denver, because it looked better and more convenient as a suite to be sat in or upon than other suites.

8

Mr Carter, who gave evidence, is a design consultant of considerable experience, whose design practice had been concerned mainly with the design of furniture. He had no connection of any sort with the Plaintiffs. Of the Bronx suite he said this, in the Second Volume of Evidence at page 44: "I think it is probably typical of this middle of the road commercial type of production furniture that I should have thought was sold in really quite large quantities, I should say, to middle of the road retail stores and shops. (Q) Aestheticallyspeaking, do you consider this to be a good design or not? (A) Personally, I do not, no. I think it is mediocre, in my opinion, although I can see it has great...

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