The Federal Court of Appeal (the “FCA”) recently confirmed a first instance decision from 2019 and relating the alleged copying of certain pieces of jewelry. The decision at issue is Pyrrha Design Inc. v. Plum and Posey Inc. (2022 FCA 7).

As one may remember, the original decision involved a dispute between competing designers of jewelry who both produced and sold certain pieces based on antique wax seals. Though there was unmistakable resemblances between the products at issue, the Federal Court held this did not amount to copying for the purposes of copyright law. Indeed, the concept of the jewelry at issue being the same, did not amount to actually copying works protected by copyright. Given the exact work by the original designer has not been copied (as opposed to the concept of such pieces, for example), no copyright infringement occurred in this case.

On appeal, the FCA validated the reasoning originally applied by the Federal Court, including how it analyzed the issue of the resemblance between the works at issue and whether there had been reproduction of a substantial portion of the original works. As held in the 2019 decision, the FCA decision confirms that, in order to ascertain whether there was infringement, it is appropriate to adopt  a two-step process, whereby one first determines whether there is substantial similarity between the works at issue, then ascertaining whether this resemblance actually relates to portions of the original works that were the fruit of the original artist’s actual contribution to the end result, meaning those that resulted from the exercise of his/her creativity, choices and judgment. In other words, though two works may look like one-another, if the overlap actually relates to pre-existing elements (in the public domain, as in this case) legally we should conclude there was no real copying and, thus, no infringement.

In so doing, the FCA confirmed it is preferable to adopt a holistic approach (by looking at the works at issue as a whole), by contrast to seeking to compare discreet elements/components side-by-side.

Here, one should note that the original artist’s treatment of the antique seals to turn them into jewelry was limited to slight changes to their borders and applying certain effects like oxidation and polishing. As such, these aspects were what his creative efforts resulted in, not the whole of the piece of jewelry, as such. Under such circumstances, the FCA confirms the scope of protection should be limited, as most of what constitutes the works at issue did not result from the exercise of the author’s skill and judgment.

This decision is also a good reminder that copyright law does not deal in concepts, methods or ideas. Having an idea to use antique wax seals as a basis for pieces of jewelry may be neat, but it is not something copyright law protects. The concrete expression of that idea, in designing actual pieces -yes, but not the idea itself. Though a competitor may have “stolen your idea”, it does not mean that we can necessarily do something about it, especially not through copyright law.