George Hensher Ltd v Restawile Upholstery (Lancs) Ltd: HL 1975

The parties dispute the existence of copyright in a prototype of a piece of furniture.
Held: The term ‘craftsmanship’ in the Act suggests a durable useful handmade object.
Lord Reid explained the significance of the intention of the maker or designer: ‘It is I think of importance that the maker or designer of a thing should have intended that it should have an artistic appeal but I would not regard that as either necessary or conclusive. If any substantial section of the public genuinely admires and values a thing for its appearance and gets pleasure or satisfaction, whether emotional or intellectual, from looking at it, I would accept that it is artistic although many others may think it meaningless or common or vulgar . . During last century there was a movement to bring art to the people. I doubt whether the craftsmen who set out with that intention would have regarded all their products as works of art, but they were certainly works of artistic craftsmanship whether or not they were useful as well as having an artistic appeal . . In the present case I find no evidence at all that anyone regarded the appellants’ furniture as artistic. The appellants’ object was to produce something which would sell . . no doubt many customers bought the furniture because they thought it looked nice as well as being comfortable, but looking nice appears to me to fall considerably short of having artistic appeal. I can find no evidence that anyone felt or thought that the furniture was artistic in the sense which I have tried to explain.’
Lord Morris suggested some form of minimum standards before something could be called ‘artistic’: ‘If it is asked whether works which possess distinctive features of design and skill in workmanship or works which possessed distinctive characteristics of shape, form and finish or qualify to be called artistic, I would say that the word ‘artistic’ calls for something additional and different. If it is asked whether there is artistry if there is an appeal to the eye, I would say that something more is needed. In any event, and apart from this, such questions would tend to suggest or to impose a clamp of rigidity and restriction in definition where none is needed.
In deciding whether a work is one of artistic craftsmanship, I consider that the work must be viewed and judged in an attached and objective way. The aim and purpose of its author may provide a pointer, but the thing produced must itself be assessed without giving decisive weight to the author’s scheme of things . . So I would say that the object under consideration must be judged as a thing in itself. Does it have the character or virtue of being artistic?’
Viscount Dilhorne discussed what was required before a work could be one-off craftsmanship: ‘A work of craftsmanship is, in my opinion, something made by hand and not something mass produced.’ He differed from the trial judge as to whether the work, which was conceded to be one of craftsmanship, was artistic: ‘I do not think that the presence of distinctive features of shape, form and finish suffices to make a work artistic.’
Lord Simon said: ‘A work of craftsmanship, even though it cannot be confined to handicraft, at least presupposes special training, skill and knowledge for its production . .’craftsmanship’, particularly when considered in its historical context, implies a manifestation of pride in sound workmanship – a rejection of the shoddy, the meretricious, the facile. But the craftsmanship – not the work itself – must in addition be artistic.’ and
‘I start by re-emphasising that the statutory phrase is not ‘artistic work of craftsmanship’ but ‘work of artistic craftsmanship’ and that this distinction accords with the social situation in which Parliament was providing a remedy. It is therefore misleading to ask, first, is this a work produced by a craftsman, and secondly, is it a work of art? It is more pertinent to ask is this the work of one who was in this respect an artistic-craftsman. It follows that the artistic merit of the work is irrelevant . . .not only is artistic merit irrelevant as a matter of statutory construction, a valuation of artistic merit is not a task for which judges have any training or general aptitude . . since the Tribunal will not attempt a personal aesthetic judgment . . it follows, again, that whether the subject matter is or is not a work of artistic craftsmanship is a matter of evidence; and the most cogent evidence is likely to be from those who are either themselves acknowledged artists-craftsmen or concerned with the training of artists-craftsmen – in other words, expert evidence. In evaluating the evidence, the court will endeavour not to be tied to a particular metaphysics of art, partly because the courts are not naturally fitted to weigh such matters, partly because Parliament can hardly have intended the construction of its statutory phrase should turn on some recondite theory of aesthetics . . .it is probably enough the common experience tells us that artists have vocationally an aim and impact which differ from those of the ordinary run of humankind.’
Lord Kilbrandon said that the craftsman’s intention was the primary test: ‘The conscious intention of the craftsman will be the primary test of whether his product is artistic or not; the fact that many of us like looking at a piece of honest work, especially in the traditional trades, is not enough to make it a work of art.’
Simon, Reid, Kilbrandon, Morris LL, Viscount Dilhorne
[1976] AC 64, [1975] RPC 31
England and Wales
Cited by:
CitedLucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .

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Updated: 20 February 2021; Ref: scu.442598