The Federal Court decision in State of Escape v Schwartz (2020) FCA 1606, is a reminder of the importance of seeking registered design protection for the articles of fashion such as handbags in Australia. Unlike many other countries , in Australia it is not possible to enforce copyright in respect of reproductions of artistic works that are industrially applied in a corresponding design. Corresponding designs are better protected by registered designs. Whilst this defence to copyright infringement does not apply to works artistic craftsmanship, characterising an article of fashion, such as a bag, as a work of artistic craftsmanship has proven difficult. As the Federal Court confirms this characterisation does not depend on assessing the beauty or aesthetic appeal of the work, or any harmony between its visual appeal and its utility, or whether the article's features make it distinctive. The key consideration is the extent to which the article's artistic expression, in its form, was constrained by functional considerations.
... Determining whether the bag is a work of artistic craftsmanship turns on the extent to which the Escape Bag’s artistic expression, in its form, was unconstrained by functional considerations.