Copyright Aid

I have a new product I'm working on that will replicate tweed weave by photo printing on to microfiber fabric.

Currently I have used a Google image of a fabric design that I liked and had this photo printed.

My question is, can tweed weave (colours and pattern) be copyrighted? Could I be in infringement by using this?

Hi eugenewright and welcome,

The short answer is yes, a weave using specific colours of weft and warp and made to a specific pattern can be subject to copyright. The best case which exemplifies this is known as Abraham Moon & Sons Ltd v Thornber. There is a more recent case, from 2020, which covers many of the same issues, albeit it wasn't concerned with tweed fabric. It is known as Response Clothing vs Edinburgh Woolen Mill. If you have time, it would be worth reading both judgments to see how the court analysed the facts in each case in order to come to its decision.

Furthermore, the appearance of a fabric, either applied onto it by printing etc or integral to it by virtue of its weave, can be registered as a design. For example, this is the method used to protect many traditional tartans and tweeds, where a claim to copyright might be dubious (see an example of a registered design for a tartan here and a tweed here).

The main differences between the protection and characteristics of copyright and design right are as follows. Copyright comes into being at the moment the work is created, provided that it is original. It then lasts for the lifetime of its creator plus 70 years after his/her death. Copyright can still be infringed by using the protected attribute in an entirely different medium, and even converting a 2 dimensional work into an 3 dimensional one (as you are effectively doing) can be infringement (see section 17(3) of the Copyright Designs and Patents Act 1988). Infringement of copyright is a matter of strict liability, that is to say, once the court is satisfied that the work is subject to copyright (for instance, by meeting the originality test) it is then up to the defendant to prove that he had a legal excuse for copying the work without permission. Ignorance that copyright existed is not enough. On the other hand, design right has to be registered and only lasts for up to 25 years, provided that the owner re-registers the design at the appropriate time. Design right only prevents another person from manufacturing something which has the same shape, configuration or surface decoration/appearance, or is so closely similar to the registered design that a person familar with such products would think that they were the same. You might be able, for instance, to take a sample of surface decoration from a registered design and apply it to an entirely different object without infringing the original design right - subject to establishing the classes of goods for which the design is registered.

So you now need to establish if the tweed you would like to use is sufficiently original to be subject to copyright, and also to see if its appearance is protected by design right. 'Original' in this context has a narrow meaning. It means that the work (here a work of artistic craftsmanship) must have been created by the mind of a human and not copied from an earlier source. In reality, it's a fairly low threshold. Originality is one of the reasons that some traditional tartans cannot be adequately protected by copyright today since the identity of their creator or creators is unknown and it can be safely assumed that they died well over 70 years ago. But of course there are many modern tartans, tweeds and other plaid patterns which will meet the originality test.

Your research needs to be carried out diligently and is essential, as certain tweed manufacturers, notably the Harris Tweed Authority take active measures to protect their products and brands.You can read more about the historical background to this here.

I hope this answers your question.

As a follow up, I should also clarify something which I rather glossed over in my previous reply. Although I was mainly tailking about the copyright in fabric designs, I neglected to mention that in using a random photograph that you found on the internet, you might very well run into an infringement claim just for using the image without permission. Obviously if the photographer raised a claim, the subject matter of his image would be irrelevant when it came to establishing if his image was original. As I mentioned, the threshold for this test is fairly low.

And even if you were to get a licence to use the image, you would need to make certain that the licence covered the specific process which you outlined. There was a case before the Court of Justice of the European Union (CJEU) in 2015 called Art and AllPosters v Stichting Pictoright, which involved a somewhat similar process.

Briefly All Posters is, as its name suggests, a company which sells posters, and a lot more besides. It had a licence to produce paper posters featuring works of art, and in addition to these posters, it used a chemical process which dissolved the paper backing, and managed to transfer the artwork from the posters onto canvas, so that the end result looked like an oil painting done on canvas. They came unstuck because the copyright owners of the artwork used in the original paper posters succeeded in their claim that AllPosters had republished their images without permission. Prior to this decision, the generally accepted legal doctrine was that once a bona fide sale of an article had taken place, the new owner the work could do with it as he wished, and the copyright owner was barred from objecting. This is known as the exhaustion of rights. Not so in this case, said the CJEU. The court said that the paper backing formed an integral part of the original works when they were sold, and by removing that part, AllPosters had effectively made a new work for which it didn't have a licence. It was a decision which relied on the very specific facts in that case, and it hasn't overturned the doctrine of exhaustion in the vast majority of cases. Unlike the earlier court cases I referred to, I don't think you need to read the CJEU decision unless you want to, but it is at least a cautionary tale.