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Old 16th February 2021, 10:35
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The 'art or design?' argument muddies the waters somewhat as the length of time the item under discussion is protected is substantially different between the two.

If the item is an industrial design then its protection is decades shorter than if it's art, especially if it's been out of production for many years.

But, if it's art rather than industrial design, then the rights stay with the creator, even if they were employed and/or paid by someone else to design/draw the original.

So, if a car is an industrial design, then the design protection has lapsed for just about anything we're likely to build a replica of.

But, if the same car is art, then the original artist (designer), or their estate if deceased, owns the ongoing rights to the design, possibly unless their original employment contract explicitly stated that they passed all rights to their designs on to their employer.

That would mean that the rights to the C Type design lay with Malcom Sayer's estate, while the rights to most Ferrari models would belong to whoever penned them at Pininfarina, even if Pininfarina paid the designer to draw them and Ferrari paid Pininfarina for the work.

But are these cars art and what is art anyway? The dictionary can help here:

Art
noun
1. The expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.

Hmm, '...works to be appreciated primarily for their beauty or emotional power'.

So, the C Type was designed to win motor races, not as a work to be appreciated primarily for its beauty or emotional power, ergo, it's an industrial design, not a work of art, no matter how pretty it is.

The same goes for every other Jaguar, every Ferrari, Porsche, Maserati, Lamborghini, etc., etc. Every single one was designed to be a means of transport - some to win races, some to allow the rich and famous to display their wealth through conspicuous consumption and some just to get a driver and passenger(s) from A to B in speed, comfort and style.

I do, however, believe that some cars definitely fall into the category of art as defined in the dictionary, but these are exceptionally rare.

Take the work of George Barris, for example. Many of his creations were definitely intended to be appreciated primarily for their beauty or emotional power, as they're often just too bonkers to be considered just a means of transport. That might well also apply to most of what we do. I for one built my Spyder not as a means of transport or to win races, but as something to be appreciated for its looks and the emotional response it elicited in me every time I opened my garage door, and pretty much everyone else who saw it, which would indeed qualify it as art.

And finally, in order for a design/art copyright to have been breached in law, the replica has to be an almost exact copy. Take the Caterham vs Westfield litigation, for example. The case was settled out of court, but resulted in Westfield having to make only minor changes to the car - a slightly wider cockpit, an integrated nose-cone and fibreglass body construction instead of aluminium - in order to carry on building and selling their cars in competition with Caterham.

I just hope that the Swedish decision is overturned and that this doesn't become an issue for our hobby in the UK.
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