Can I illustrate a mass-produced object such as a toy in an artwork without infringing copyright laws?

The answer is highly complex but an indication of the issues involved is given by the following simplified comments on a highly complex set of copyright provisions under UK law, chiefly governed by the Copyright Designs and Patents Act 1988, and its subsequent amendments (CDPA).

The CDPA automatically gives copyright protection to original “artistic works” that include fine artworks and architecture plus “works of artistic craftsmanship”. It is likely that the original designs for the toy in question would have copyright protection both as 2D graphic fine artwork (a design document) and as 3D object (a design model).

However, CDPA makes provision permitting certain specific things to be done using design documents and models without the copyright owner’s permission, which specific things would not be infringements of copyright in a design document or model. The relevant CDPA provision is Section 51 (1) that states:

“It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or typeface to make an article to the design or to copy an article made to the design.”

The meaning of Section 51(1) is not easy to grasp, mainly because of the absence of punctuation. To help the questioner, that Section is repeated below with punctuation that hopefully begins to reveal its meaning:

“It is not an infringement of any copyright in a design (document or model recording or embodying a design for anything other than an artistic work or typeface) to make an article to the design or to copy an article made to the design.”

And is further repeated with clarifying insertions, namely:

“It is not an infringement of any copyright in a design (document or model for a toy) to make an article to the design or to copy that toy.”

In other words, the aim of Section 51(1) is to remove from the sphere of fine art copyright protection 3D objects designed for industrial mass production.

Industrially mass-produced 3D articles (and their original 2D designs) are given separate protection against commercial exploitation by other provisions of the CDPA and related legislation; and such protection is chiefly aimed at preventing rival businesses merchandising the same or similar 3D objects. The artist in question would not be planning to merchandise 3D objects, but to make 2D illustrations.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.