Posted by Stephen Welfare, Partner
Garden landscaping – who owns the design?
It is probably universally accepted that an architect owns the design in a building. But what of a garden? Intellectual property specialist Stephen Welfare explores the issue.
The design in a building
The architect has sketched, then technically drawn the structure to be built. The builder, although a skilled craftsman, who may as of a constructional necessity made minor alterations to the build from the architect’s plan, nevertheless follows instructions. He builds to the architect’s design. This was stated as a matter of law in Meikle –v- Maufe .
The coming into force of the Copyrights Designs & Patents Act 1988 (CDPA) made the law more permanent, Section 4(1)(b) expressly providing that copyright subsists in artistic works, including (amongst others), a work of architecture being a building or a model for a building. “Building” is defined as including any fixed structure, and a part of a building or fixed structure.
But what of a garden?
The layout of the garden is the result of the thought and skill of the designer and increasingly these days, significantly more than merely utilitarian in use, but truly artistic. But an artistically laid out garden, with any number of flowers and plant arrangements, shrubbery and lawn, is not included within the statutory class of artistic works.
Another pre-CDPA case of relevance is Vincent –v- Universal Housing Co Limited. The case concerned a garden, in which stone and rock work were prominent features, being photographed and allegedly passed off as that of another. The Court held that copyright did subsist in the layout of the garden because it consisted of a combination of steps, walls, ponds and other structures in stone and so was an architectural work of art. Today, it would qualify as an artistic work within Section 4(1)(b).
In that case, the claimant was the landscape gardeners responsible for designing and building the garden. The defendant supplied the garden owner with a statue. They used a photograph of it in situ in the garden within a catalogue to solicit orders for their landscaping business. The claimant complained of copyright infringement in the drawings for the garden and passing off. The Court rejected the claim to infringement of copyright in the drawings, but the garden once constructed was an architectural work of art and the use of the photograph did amount to an offer to construct a garden in accordance with the claimant’s design, and so the Court granted an Injunction to the Claimant.
More recently, in 2011, in Redwood Tree –v- Warren Apsey, the Patents County Court held that the defendant was guilty of passing off. Both parties were small tree surgery businesses, only 10 miles apart. They had co-existed for about six years, but whenever the defendant traded in the claimant’s area, there was a misrepresentation and the claimant having established goodwill, was entitled to relief. The Court ordered the defendant to stay away from a certain geographical area. The case did not concern copyright and is only relevant to the issue of protection of goodwill through a limited Injunction.
The conclusion therefore is that in order for a landscaped garden to enjoy copyright protection, it must be capable of being held to be a structure and in order to do so, it must feature all or any combination of the following; steps, pond, walls and other stone (or presumably other permanent material) structures. If the landscaped garden can be said to enjoy copyright protection, then the owner of the copyright will be the landscape gardener who designed it, and not the labourer who physically constructed the garden (if a different person). As with most forms of copyright, if the design is created by an employee in the course of his employment, then the employer will be the owner of the copyrights.
Stephen is a partner in our Technology & Media and Dispute Resolution teams. He is an experienced commercial litigator, with particular specialism in contentious intellectual property law. Contact Stephen on:
020 7842 1426 Email us
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