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Jaguar C-Type sports car attracts copyright protection as a work of applied art and puts the brakes on replica car manufacturer

Posted: 23/03/2021

The Swedish Patent and Market Court recently held that the Jaguar C-Type sports car (which was designed in the UK in 1951) attracts copyright protection in Sweden as a work of applied art and that such copyright (belonging to Jaguar Land Rover Ltd) had been infringed by replica cars produced by the Swedish company Creare Form AB (decision no PMT 15833-18 dated 11 December 2020).

The Jaguar C-Type (officially the Jaguar XK120-C) is an iconic sports car, recognisable due to its distinctive tubular frame and sleek design. It was created for racing and famously won the Le Mans 24-hour race in 1951. Only 53 C-Type cars were ever built, all of them between the years of 1951 and 1953.

The key findings of the Swedish Patent and Market Court as to copyright protection and infringement are set out below.

When considering whether the Jaguar C-Type qualified for copyright protection, the court applied the CJEU’s principles in C-145/10 Painer (paragraphs 88-94) and stated that ‘an appropriate starting point for the assessment of copyright protection is often the designer's account of the design process, from which it can be clarified what he wanted to create and what formal expressions he thought at the time were important and wanted to emphasise’. The court referenced C-833/18 (Brompton Bicycle) in consideration of Jaguar’s ‘origin story’ and found that the instructions and limitations imposed on Malcolm Sayer (1916-1970), the car designer, had not prevented significant free and creative choices in the design of the car. It concluded that the Jaguar C-Type was therefore subject to copyright protection as a work of applied art.

The court considered whether a work of applied art created in the UK in 1951 could enjoy copyright protection in Sweden. Ultimately, the court found that the 1993 Council Directive 93/98/EEC, as implemented in Sweden through amendments to the Copyright Act, granted protection for works of applied art to 70 years after death of the author - this is the same duration of protection as granted under the Copyright, Designs and Patents Act 1988 in the UK. The court thus concluded that the Jaguar C-Type was protected as a work of applied art in Sweden until 2040.

The court had to decide if UK or Swedish law should be applied to establish ownership of the copyright. Interestingly, Swedish case law had not previously dealt with the issue. The court therefore applied the so-called CLIP Principles (Conflict of Laws in Intellectual Property, European Max Planck Group) and found that Swedish copyright law should be applied and that Jaguar was the copyright owner, through a chain of company transfers.

Creare argued that the replica did not infringe Jaguar’s copyright due to Jaguar’s general acceptance of the replica car industry. However, Jaguar’s acceptance of replicas did not change the court’s decision: that Creare had infringed Jaguar’s copyright by making the work available to the public through manufacturing, marketing and selling replicas of the C-Type sports car.

This article has been co-written with James Mitchell, a trainee solicitor in the commercial, IP and IT team.

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