End of the road for replicas? An analysis of the JLR copyright case in Sweden

By Nigel Adams, disputes Partner at Goodman Derrick LLP solicitors.

In the middle of January this year the High Court in Sweden gave judgment in favour JLR
regarding its claim that:

1. It was the lawful owner of the copyright in the shape of the Jaguar C-Type; and
2. That the activity of the Swedish company JLR sued because it was making replica C-Types
   was infringing JLR’s copyright, with the result that the company had to stop
   making further replicas and might also have to pay damages and costs to JLR as
   well.
   The decision in Sweden may be the subject of an appeal, but notwithstanding there may
   be another twist in this case the ruling so far has sent shockwaves throughout the classic
   car community.
   Most creative efforts, whether in writing, music, art etc., are capable of being protected
   by the law of copyright (or similar laws). In essence this law prevents third parties from
   exploiting the work of others without permission or compensation and protection arises
   automatically in those countries which recognise copyright law (and most countries do
   have their own copyright laws). The design of a car is capable of being protected by
   copyright in much the same way as any other 3D shape or design (think of it as a form of
   sculpture) and so it is not a terrific surprise that the Court in Sweden has ruled that the
   shape of the C-Type is protectable under copyright law – it is, after all, a very distinctive
   shape and was unlike anything else around at the time.
   Once the Court in Sweden has recognised that JLR holds the copyright in the C-Type shape
   it is once again no surprise that the Swedish business copying the design to make replica CTypes
   was told to stop. However, that is not the end of the road as it would be up to JLR
   to award permission to any business in Sweden that wanted to make C-Type replicas.
   Copyright works are routinely licenced for use by third parties who typically pay a flat fee
   for a licence or perhaps a fee graduated by reference to any profits made by their
   exploitation of the licensed work. In this case JLR could, if it wanted, licence the Swedish
   company to enable it to make further replicas, but JLR does not have to grant licences and
   it can now control who makes replica C-Types in Sweden by controlling to whom it grants a
   licence.
   The Swedish Court decision could be used by JLR (and other manufacturers) to launch
   similar proceedings in other countries, but it is by no means certain that the Courts of
   other countries would necessarily follow what the Swedish Court has decided – each Court
   would have to make its own mind up about whether copyright protection exists for a
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   particular shape or design. In addition to this JLR had to show that the chain of ownership
   of the copyright was unbroken from the original designer (attributed to Malcolm Sayer) to
   the current company asserting ownership (JLR). With older copyright works created years
   ago that task is not always easy and I have seen claims by well-known brands fall down
   because the chain of title was unclear, or ownership had not properly passed to the end
   manufacturing company. Not all manufacturers might achieve the same results as JLR has
   in Sweden. In addition, if a lot of replica activity has gone on unchecked for years, or even
   been encouraged by the official manufacturer, it might be difficult for an official
   manufacturer to get help from a Court.
   JLR has said that it does not want to undermine the goodwill the brand enjoys, but there
   should be no doubt that the Court decision will have alarmed many Jaguar and other
   enthusiasts in this country and around the world who own or manufacture replica classic
   cars. It remains to be seen if JLR seek to apply the decision in other countries or if any
   other manufacturers will seek to follow suit.
   We shall keep an eye on this story and bring news of how it develops in due course.