Following Charles Saatchi’s purchase of it for £1million, Damien Hirst’s 20 ft bronze sculpture “Hymn” was claimed by toy maker Humbrol to infringe its rights in the exactly similar (though in plastic and a great deal smaller) “Young Scientist Anatomy Set”.
Topic: Design rights
Who: Humbrol Ltd and Damien Hirst
When: May 2000
Where: UK
What happened:
Following Charles Saatchi’s purchase of it for £1million, Damien Hirst’s 20 ft bronze sculpture "Hymn" was claimed by toy maker Humbrol to infringe its rights in the exactly similar (though in plastic and a great deal smaller) "Young Scientist Anatomy Set". This was a £14.99 toy of a male torso mostly stripped of its skin to reveal the organs, muscles, tendons and soft tissue underneath. Hirst admitted he was inspired by the toy but denied infringing any legal rights. A pre-trial settlement involving payment of an undisclosed sum to Humbrol saved the parties the delights of a lawyers’ beanfeast dining out on the question of precisely what rights, if any, Damien’s work had infringed. Humbrol had not registered the design (which probably would have been their best bet), so they would have had to fall back on copyright in the plastic model as a sculpture, copyright in it as a work of artistic craftsmanship or unregistered design right. On artistic craftsmanship, Humbol would have found it hard going to meet the rule that the creator was consciously intending to produce a work of art. As for "sculpture" arguments, the cases give no clear steer on whether a Chancery Judge would adopt an "ordinary meaning" approach and reject intricate arguments that the original mouldings needed for the toy-making process were sculptures even though they were only means to an end.
To win on unregistered design right Humbrol’s achilles heel would probably have been the fact that "commonplace" designs do not qualify. What could be more commonplace than a male torso?
No wonder the parties settled, probably for a sum considerably south of the combined legal costs had the matter been fought to a standstill in court.
Why this matters:
In the world of commercial and artistic design there is very little under the sun that is totally new. Designers of 3D objects, however, should think of the rights that might protect their handiwork at an early stage, and certainly not go public on any design, or even show it to any third party, until they have taken advice on whether applying for a design registration would be viable. Why? Because once any design ceases to be confidential it ceases to be novel and cannot be registered.
