Escaping the provisions
of artistic craftsmanship
Inspire July 2022
The Full Court has
unanimously dismissed
the appeal in State of
Escape Accessories v
Schwartz 1 , rejecting the
claims against Stefanie
Schwartz and Chuchka
Pty Ltd for copyright
infringement in respect
of State of Escape’s
well-known perforated
neoprene tote bag (the
Escape Bag) on the basis
4 that it was not a “work of
artistic craftsmanship”
under the Copyright Act.

State of Escape Accessories Pty
Limited v Schwartz [2022] FCAFC 63
1
At first instance Justice Davies
a “corresponding design” has been
decided that the Escape Bag, while
“embodied in a product” and applied
undoubtedly a work of craftsmanship, “ industrially”.

was not a work of artistic
Sections 75 and 77 of the Copyright
craftsmanship notwithstanding
Act provide a defence to copyright
its aesthetic and design qualities.

infringement in an artistic work
This conclusion was reached after
where a corresponding design is, or
a detailed consideration of the
has been, registered as a design or
design features and evidence of the
otherwise applied industrially. The
creator, Ms MacGowan, along with
purpose of the overlap provisions is
independent experts. On appeal,
to ensure functional works intended
State of Escape sought to challenge
for mass production in three-
her Honours analysis of the evidence
dimensional form are not be afforded
in reaching her decision.

the long term protection provided
The Escape Bag is a soft, oversized
under the Copyright Act.

tote bag designed and created by Ms However, these overlap provisions
MacGowan, a co-founder of State of
and defences do not apply to works
Escape. Products such as the Escape of artistic craftsmanship. A work of
Bag may be artistic works as defined
artistic craftsmanship may still be
by s 10(1) of the Copyright Act and
afforded copyright protection, even if
can also be registered as designs
it is capable of protection under the
and protected under the Designs Act. Designs Act and a corresponding
However, design/copyright overlap
design has been industrially applied.

provisions exist in Australia meaning
Works of artistic craftsmanship
that an artistic work cannot be
are considered to have real artistic
protected under both the Copyright
quality such that they warrant the
Act and the Designs Act at the
greater protection provided under
same time. Copyright protection
the Copyright Act rather than the
for an artistic work is denied where
comparatively short design protection.