Degree of originality lower in 'relatively simple' copyrighted work
The Federal Court of Appeal recently dismissed a copyright infringement claim by a jeweler upon finding that the respondent did not reproduce a substantial part of the skill and judgment the jeweler used to create the “relatively simple” designs of their jewelry.
Pyrrha Design Inc. used antique wax seal impressions to create metal jewelry, and nine of these trinkets were the subject of Pyrrha’s copyright infringement claim against Plum and Posey Inc. in Pyrrha Design Inc. v. Plum and Posey Inc., 2022 FCA 7.
In 2019, the federal court declared that the Pyrrha Designs were original and subject to copyright protection, but it also ruled that the designs were relatively simple, so the degree of originality was lower. The court found that Plum and Posey did not reproduce a substantial part of the skill and judgment used to create the jewelry.
Pyrrha argued that the federal court incorrectly relied upon the simplicity of the process used to make the jewelry reach its conclusion. However, the appellate court observed that in applying the “skill and judgment” approach, the federal court correctly referred to the creativity involved in the creation of the designs, not the effort expended to make the jewelry, as asserted by Pyrrha.
The Court of Appeal affirmed the lower court’s conclusion that because the designs were simple, the degree of originality was lower. Evidence showed that Pyrrha did not create or modify the imagery in the wax seals used to create its jewelry and such imagery was in the public domain. The jeweler also used the “lost wax” casting method, which was likewise in the public domain.
In addition, the appellate court said that Pyrrha could not claim copyright on the idea of creating jewelry from wax seals because there was evidence that other jewelers had been making wax seal jewelry since at least the 1960s.
After an analysis of the designs, the court of appeal ultimately upheld the federal court’s ruling that Plum and Posey did not take a substantial part of Pyrrha’s copyrighted work. The appellate court said that the Pyrrha Designs were relatively simple copyrighted works with a limited ambit of copyright protection. According to jurisprudence, “the simpler a copyrighted work is, the more exact must be the copying in order to constitute infringement.” As a result, the appellate court ruled that Plum and Posey did not commit the offense of copyright infringement.
