February 2018. Despite the fact that the floral motif on its fabrics is based on 17th century Dutch still life paintings, B&B Fabrics’ copyright to its design has been upheld. On 6 February, a court in The Hague ordered a rival firm to withdraw its own similar-looking fabrics from sale.
The B&B Fabrics design (left) and the competitor’s fabric (right)
‘Lifted’ from the Old Masters
During the proceedings, which were brought by B&B Fabrics, the defendant argued that the plaintiff had simply ‘lifted’ its design from a series of well-known Old Master paintings. It was a style of painting that was employed by many artists and should not therefore qualify for protection, was the claim.
Own creative choices
The court disagreed. While it was true that a specific style could not be copyright protected, the design in question showed evidence of creative work in the selection of the flowers, their positioning, colours and the design as a whole, all of which was the result of the creative choices of the maker. This made this particular floral design eligible for copyright protection, the court concluded.
Left: two Dutch Masters and right the design B&B: same style but protected by its creative choices.
The obvious corollary was that the counterparty was infringing these rights, given that its designs were practically identical to those of B&B.