In State of Escape Accessories v Schwartz [2022] FCAFC 63, the creators of a neoprene tote called the ‘Escape Bag’ were unable to persuade the Full Court of the Federal Court that copyright protection should subsist in the bag as a work of artistic craftsmanship.  The bag had not been registered as a design under the Designs Act 2003 (Cth). In what promises to be an entertaining and vigorous exchange of ideas, opposing counsel in the case, Natalie Hickey and Luke Merrick, will discuss and debate the outcome.  Questions posed by the decision include:

1. Is anything protectable as a work of artistic craftsmanship under the current law?  
2. If so, what might satisfy the test? 
3. Should new designers unfamiliar with the Designs Act give up on any hope of legal protection if they have missed the registered designs boat? 
4. Should anything be done to reassess the current legal position and, if so, what might that involve?

Luke Merrick is a commercial barrister with a particular focus on intellectual property.  He appeared with Marcus Fleming for the respondents in State of Escape.

Natalie Hickey is a member of the Victorian Bar specialising in intellectual property, defamation and commercial litigation. The most recent judgment in respect of which she has been briefed is for the successful applicant in Directed OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404 per Beach J (breach of fiduciary duties, misuse of confidential information, infringement of copyright, secret commissions, breaches of the Corporations Act and claims under Barnes v Addy). In State of Escape, Natalie was led by Bruce Caine QC for the applicant.