The Artfulness of Design: Copyright and the Danish Modern Inheritance
Chapter 6 Shifts in the relationship between copyright, creativity and cultural heritage affect the formation and dissemination of art and culture in society. Copyright law regulates creative expression by either promoting or restricting it: copyright rules thereby come to contribute to the shaping of a cultural heritage. In this chapter we will consider how the evolution of Danish design in the twentieth century may serve as an indicator of shifting relationships between copyright, creativity and cultural heritage. Today, under Danish copyright law, design – or rather ‘applied art’ as it is termed in this context – is defined as a type of subject matter.1 Copyright in design (in ‘works of applied art’) has led to numerous conflicts between rivals in the market for such serially produced expressions of creativity as coffee sets, chairs, cutlery, lamps and so forth. In the twentieth century in Denmark and elsewhere, design increasingly came to be recognised as a central and valuable element of national cultures. Arguably, works by some Danish designers constitute the most original expressions of creativity by Danish artists in the twentieth century and by the same token, one of the most substantial contributions to the Modern Danish cultural heritage.2 As such, to the extent that copyright protection is a societal instrument to promote the public good, it is uncontroversial today, that design should be protected by copyright law on equal terms with the free arts (in the Kantian sense). However, it is also widely recognised that copyright in design should not be used to create monopolies on particular ‘forms’: chairs with four legs, cylinder-shaped drinking glasses and so forth. Crucially, designs have a double identity and status in society: as works that constitute part of a cultural heritage and as marketable products with everyday functions. To be sure, other objects of copyright protection including literature and visual art may also be said to be works and products at the same time. However in literature and visual art, the distinction between the ‘work’ and the ‘product’ is clearer: the literary text versus the book and the artistic image (which may be reproduced as postcards and so forth) versus the unique original. In design the distinction is less clear. Danish design first came to prominence in the 1950s at home as well as abroad. Danish design became ‘Danish Modern’ or ‘Danish Design’ with upper-case Ds. Commentators worldwide recognised the originality of works by Danish designers – Finn Juhl, Hans Wegner, Arne Jacobsen, Kay Bojesen, Børge Mogensen and others – and the most prestigious international design awards were granted to Danish designers and design institutions.3 In the years from 1954 to 1957 ‘Design in Scandinavia: an exhibition of objects for the home’ visited 24 North American cities. The exhibition – which showcased items of furniture, glassware, ceramics, textiles, knitwear and metalwork from Denmark, Sweden, Norway and Finland – brought international recognition as well as commercial success. The formation of the very concepts and brands, in particular ‘Scandinavian Design’, ‘Danish Modern’ and ‘Swedish Modern’ took place in this context.4 In the United States ‘Danish Design’ was acclaimed by some of the most influential figures of the art world, notably by Edgar Kaufmann, Jr., Director of the Industrial Design Department at MoMA, New York.5 Works by Danish designers were included in the collection of MoMA and shops selling Danish Modern opened up on prestigious sites, for example ‘The Lunning Collection’, on Fifth Avenue. In a similar vein, under the label ‘Danish Modern’, Danish design entered major museums and markets in many other countries.6 Meanwhile in Denmark, the Danish Modern designers experienced a related success – both in terms of sales and ‘creative’ recognition. The designers were endorsed by the Establishment; their works were installed in public spaces and state offices: railway stations, schools, hospitals and municipal employment offices were furnished with designer items, as were many Danish middle-class homes. The societal recognition of the value of the artistic expression inherent in design is matched by the recognition by Danish copyright law of the fact that many designed products are the results of personal, creative efforts: it is this that makes them worthy of protection. Design has, in principle, been protected by Danish copyright law since 1908. However, as Danish case law from the first half of the twentieth century reveals, for a long time courts remained hostile to the idea of granting copyright protection to design. The problem was that works of design always have a function; they are always created in order to fulfil a practical purpose: cups to drink from, chairs to sit on, lamps to light up the room. Danish courts found such a utilitarian element incompatible with copyright protection. By the mid-twentieth century the situation had changed and utility was no longer seen as grounds for excluding design from copyright protection. ‘Applied art’ was specifically mentioned as an object of protection in the Danish 1961 Copyright Act and the assessment of ‘værkshøjde’ – the originality of the artistic expression in a design – was to take place independently of whether a work had a function or not. As a result, a wide range of design works have been granted copyright protection since 1961 including very simple items such as plain cutlery, casseroles, a holder for washing-up brushes, a notice board and so forth. Essentially, this development gave way to a new problem. In particular, if protection is granted to a form which is – more or less – determined by a function, how does one prevent one designer from obtaining a monopoly on this function? The problem is especially pressing in relation to modern – or functionalistic – design which idealises the idea that ‘form ever follows function’, as the American architect Louis Sullivan famously phrased it.7 In other words, how does one secure creative freedom for designers in general (who all work within the same framework of functionality) while also granting them individual copyright protection? Danish courts were always very aware of the urgency of allowing ‘fair followers’ in the design field. Hence, the practice that evolved in case law was to make the originality requirement proportional to the scope of protection. A low level of originality would provide a narrow protection only. Works of applied art would be protected against close imitations only. This was the law’s way of striking a balance between copyright and creativity, to ensure that Danish Design would not be turned into a museum piece but would remain a vibrant and dynamic element of Danish cultural heritage and of the national economy. Due to recent developments in EU law however, this solution to a never-ending dilemma in relation to copyright in designs is in jeopardy. In the 2011 Painer Case – which concerned the degree to which a portrait photograph expresses its ‘author’s creative abilities’ – the Court of Justice of the European Union did not allow for inferior protection of any type of original work.8 That is, the photographer of a standard portrait photograph ‘enjoys the same protection as that conferred by copyright on any other work’.9 The painter of, say, ‘Water-lilies’ has no stronger protection of his work than that afforded to a photographer who makes a postcard of Monet’s painting. Is it then possible for Danish courts to continue the practice of limiting the scope of copyright protection of design to close imitations only? In the following we will see how the balance between copyright and creativity has been negotiated through the history of copyright in design in Denmark. Statutory developments as well as a number of landmark cases involving design will be studied. And it will be considered what may be the effect, in the context of design, of a harmonised copyright protection as prescribed in Painer. In an amendment of 1908 to the Danish Act on Authorial and Artistic Rights it was specified that copyright protection was to be extended to artistic works with a practical use and made with the aim of mass production.10 In line with a number of other European countries – including France, Germany and Britain11 – the Danish parliament decided that design, or ‘applied art’, should be granted a legal status similar to the fine arts. This development in the law may be understood in the context of a new self-awareness among designers exercised by for example, members of the British Arts and Crafts Movement and later the Deutsche Werkbund, and the increased political awareness in many countries of the value of design as a tool for nation-building and economic growth. (This is evident in the series of World Fairs that began with The Great Exhibition in the Crystal Palace in London in 1851.) Thus in 1908 § 24 of the Danish Copyright Act was revised so as to specify that: According to this Act, original artistic works intended to be prototypes for industrial art and handicrafts, as well as the objects created on the basis of such works, are to be considered works of art whether or not these are produced individually or in a larger quantity. The right according to this Act is valid for any type of reproduction, when it requires mediating artistic work as well as when the reproduction takes place by purely mechanical or chemical means, and whether or not the reproduction takes place with a purely artistic purpose or with an industrial purpose or to serve a practical use.12 New to the definition of a copyrightable ‘work of art’ was that it might be something which had been created with ‘an industrial purpose’ or to ‘serve a practical use’. This broadening of the definition of a ‘work of art’ in Danish copyright law was reaffirmed by the Danish Copyright Acts of 1912 and 1933. Yet, the copyrightability of design remained uncertain all through the first half of the twentieth century.13 This may well be seen as caution on the part of Danish courts: there was great awareness of the danger of granting monopolies to anything that was ‘naturally and technically motivated by the material and the intended use’ as the Danish Supreme Court formulated it in a decision of 1935 in which copyright protection was denied to Marcel Breuer and Mart Stam’s iconic tubular steel cantilevered chairs S 32, S 64 and S 33.14 The decision is remarkable: Breuer and Stam are counted among the most original designers of the Bauhaus and the chairs remain classics of modernist design. Three years earlier, in 1932, the German Reichsgericht had found the chairs worthy of copyright protection. Even so, the Danish Supreme Court did not consider the chairs to be ‘original artistic works destined to be prototypes for industrial art’15 as went the definition of design as objects of artistic copyright according to Danish copyright law. Similar lines of reasoning continued in Danish courts in the decades that followed. In a Supreme Court ruling of 1956, the test of whether a feature was technically or artistically motivated was applied again. However, this ruling came to effect a change in Danish copyright statutory law.16 The lawsuit involved charges for copyright infringement as well as for breach of marketing law and the plaintiff lost on both.17 It concerned a hand-operated bread slicer by the royal Danish cutlery maker Raadvad. A recognised visual artist, Ove Larsen, had been commissioned by Raadvad in 1933 to design the slicer which consisted of a wooden tray to place the bread on and a guillotine-style movable part in iron shaped as a semi-circle with a blade across. On the iron part the name Raadvad and the royal seal was added in low relief following the curve of the semi-circle. In 1952 the Raadvad company discovered that a copy of the bread slicer was being marketed by a Copenhagen ironmonger. The defendant’s bread slicer was a copy of the plaintiff’s in all respects except for the sculpted name and royal seal. Court-appointed experts – such distinguished figures as Mogen Koch and Erik Herlov – maintained that the Raadvad bread slicer possessed such qualities as to render it an ‘original intellectual work’.18
The Artfulness of Design: Copyright and the Danish Modern Inheritance
Copyright Protection of Design?
Artistic Rights in Danish Design