Copyright does not protect styles

The fundamental legal principle is that copyright does not protect ideas and concepts, but only the particular form in which they are expressed. The effect of this principle is that you cannot copyright a style or technique. Copyright only protects you from someone else reproducing one of your actual artworks – not from someone else coming up with their own work in the same style.
In a recent case, one visual artist had produced artworks which were in many ways similar to those of another, better established artist. The first artist had used the same style of painting and similar colours, techniques and subject matter. The Court found that this was not, of itself, enough to amount to copyright infringement.

Inspiration or Immitation?

How do you tell the difference between one artist legitimately being inspired by another artist and someone illegally copying another artist’s work?
The court has indicated that the correct approach is that the copyright owner must first identify:

(a) the particular artwork that they believe has been copied;
(b) the particular artwork that they say copies it.
Then the copyright owner must show how the second work reproduces the first (or a substantial part of it).

What’s allowed and what’s not?

It is okay to examine someone else’s work, absorb the concepts contained in it and then return to your own studio and apply those same concepts, techniques, colours and styles to the same subject matter to come up with your own work. But it will not be okay if you go back to your studio and actually make a copy of the work you saw, even if only from memory. And you can’t make copying okay by copying just a part of another work. Even if you take just a part of another work and then build it into your own, entirely different work this will still be copyright infringement unless the part is not “substantial”.

Reproduction and Substantiality

When is a part of an artwork a “substantial part”? What if the composition is copied and the colours are changed? What if you copy only one of the figures that appears in the background of the original work? What if you crop the original work dramatically and then set it against a new background?
The legitimacy of all of these practices depends on whether what is taken from the original work is a “substantial part” or not. The distinction between substantial and non-substantial is one of the trickiest and most blurred in copyright law and decisions will often depend on the particular facts in individual cases. However, the courts have offered some guidance to people trying to figure out what is and is not “substantial”.
The starting point for a judge making this assessment is a consideration of the ‘quality’ of the part.
How important is that part relative to the whole? How much time and effort has gone into creating that part? How distinctive and recognisable is it? That is, can it easily be identified as coming from the original work? Would it be likely to recall the original work in the mind of someone who saw it and knew the original work?
Apart from this, the degree of ‘objective similarity’ between two works (or parts thereof) is also important. Is it clear when you look at them that one is a copy of the other?

What if I only copy a percentage?

The relative quantity of the part taken relative to the whole of the work from which it is taken may also count for something. However, it is a common mistake to believe that you can avoid a finding of copyright infringement by only copying a certain percentage of a work. This is generally not true and is never true in relation to visual artworks. Even very small parts of works can be “substantial” and often, it is precisely because the part is distinctive and memorable that others want to copy it.

What about copying generic features?

If you copy a part of a work that is not distinctive, but relatively generic, then it is less likely to be “substantial” and more likely that it will be permissible to copy it. If you copy only one generic feature from an artwork then it is not likely to be copyright infringement. However, if you copy a lot of generic features from the same work, problems may arise. This will happen when the combination of features reaches a degree of complexity such that it is “practically impossible” that the combination of generic features could have been arrived at independently.

Real versus imaginary subject matter

The courts have drawn a distinction based on the subject matter of the works. They will take a stricter approach for subject matter that is a concept or idea which exists only in someone's imagination, as compared with subject matter which represents something that actually exists -like the human form or a landscape. This is because ‘real’ subject matter is less original and therefore less distinctive of the original artwork. This is not to say that you can copy artworks which are based on ‘real’ subject matter, but that if you copy only the subject matter this is less likely to amount to the taking of a “substantial part”.

Copyright protects investment

When it comes to copying, it is also worth bearing in mind that the courts have historically been reluctant to let one person unjustly benefit from copying work that someone else did. So, if you copy from another work, regardless of whether the parts you copy are generic or not, the courts are not likely to be sympathetic. The protection of investment and encouragement of innovation are amongst the rationales for the existence of copyright law and in some cases this type of consideration may be enough to tip the scales.

Points to bear in mind:
If someone comes up with a work identical to yours independently (e.g. they have never even seen or heard of your work) this will not be copyright infringement, because they will not have copied.

If someone is found to have copied a substantial part of your artwork this may amount to an infringement of your moral rights as well as your copyright. If your contribution, as author of original work, is not recognised this could be an infringement of your right of attribution. And if the copier passes herself or himself off as the author of the work, then this will be an infringement of your right not to have your work falsely attributed. Lastly, if your work is subjected to derogatory treatment, for instance by being cropped or tinted or distorted in some way, this may be an infringement of your right of integrity in your artwork.

Only the copyright owner and the exclusive licensee of the copyright in a work can take legal action for copyright infringement. Generally, copyright will belong to the artist or author of a work (or their employer if they created the work in the course of employment). The copyright is separate from the actual artwork and can only be assigned (sold) or exclusively licensed in writing signed by the copyright owner. In most cases, the purchasers of visual artworks, like paintings, do not acquire the copyright when they buy the artwork. Accordingly, they will not be able to take legal action to stop other people from making copies of it – only the artist, being the copyright owner, can do this.

The copying of a style has been considered so far from a copyright point of view, but there are other avenues to pursue, like passing off and misleading and deceptive conduct. Laws designed to protect consumer and business interests can be used to protect an artist’s style.

Consumer protection legislation

There is legislation designed to protect consumers from bad and unscrupulous trading practices. These Acts provide that a person must not engage in “misleading or deceptive conduct in trade or commerce”.
Potentially, where an artist copies another artist’s style and misleads people into believing their work is that of another, the ‘copycat’ will be contravening the Act. For example, if Pablita starts marketing her work under the name of another artist Frida, and she misleads, or it is likely that she will mislead, the public into believing that her work is really Frida’s, this would be legally actionable.

Can copying an artist’s style be “misleading”?

In the example, Pablita used a false name in which another artist has already established a reputation. This made it relatively easy to say there had been a contravention of the law. The situation where Pablita copies the style, techniques and subject matter of Frida’s artworks without using Frida’s name is much more difficult to attack as misleading. The legal question remains the same: is Pablita’s conduct misleading or deceptive, or likely to mislead other people into thinking her works were created by Frida, because of the way Pablita markets her work? Obviously, if people have actually been fooled, this helps a lot in making out a case.
But even without proof of actual deception, if it is likely that people will be misled, you may be able to persuade a court to protect you from another artist unfairly taking advantage of your reputation to sell their work.
The remedies a court can award if you are successful include damages (i.e. money), injunctions and orders that the defendant publicly apologise for their misleading conduct.

What considerations will be relevant?

If you are concerned about someone ripping off your work and you want to know what your legal position is, the first question you need to consider is “how is the other person’s conduct misleading?” Where there is no outright lie, the answer will often be related to your reputation. The reason that the public will be misled is because they know, and are familiar with, your work and when they see other work that is a lot like yours, they are likely to assume it actually is yours.
This can be a problem for you in two ways.
Firstly you may miss out on sales that would otherwise have gone to you.
Secondly, if people buy the work of another artist believing it is yours and they are disappointed by the other artist’s work (because of its inferior quality for instance), your reputation may be tarnished and you may lose future sales.
Importantly, you can only take legal action about this if people are being misled or they are likely to be misled.

Here are some factors that will help work out whether you have a good cause of action against someone that imitates your style:

Is your work well known?

If you can’t show that people know about you and your work in the first place, it will be difficult to prove that those same people are assuming the other artist’s work is yours simply because it is similar. For this reason court cases about this type of conduct often include a lot of evidence about reputation. It is not necessary to show that everyone knows about you and your work, only that a significant number of people among the relevant target audience do.

Who are the copycat works being targeted at?

Where, and through what mediums, are they being marketed and sold? If you are trying to establish a reputation amongst a group of people, this needs to be the same group of people to whom the copycat works are being marketed (otherwise there is less likelihood of deception). Therefore a product’s marketing and distribution channels are relevant. If you have a great reputation in the Local Galleries, but the person who is copying your art only sells in Edinburgh there is not much likelihood of crossover between potential customers.
Similarly, if you are a well-established and famous artist who exhibits only at major galleries and your copycat is selling works by hanging them on the walls of local cafés, people are again unlikely to be misled. Price can be another relevant indicator of target market. If your work sells at a price-point very different to the copycat, people are less likely to be deceived. Remember, if people know they are not getting the real McCoy and don’t care, that is not a case of misleading or deceptive conduct and consumer protection law won’t help you.

What are the habits (usually buying habits) of the target audience of the type of works involved?
With some goods (e.g. printed t-shirts) it is much less likely that a consumer will spend time checking the name of the artist than with others (e.g. paintings sold through a gallery). The less time the consumer spends checking and thinking about the origin of the work and instead relying on brand recognition (a practice typical with low priced articles). The more chance they will be misled by look-alike products.

Another important question that would fit under this heading is “are consumers of your product likely to assume that you will have ownership or a monopoly over your style. Or will they simply think that your style has become the vogue and that it is now being imitated by other artists inspired by your ideas?”
If the consumer does not expect that the style is original, it will be harder to show they were misled.

What steps has your copycat taken to distinguish your work from theirs?
For instance, what name do they use to describe the artist or source? How clear and prominent is the name they use? If the copycat uses his or her own name and it is nothing like yours, this certainly diminishes the likelihood of any confusion. If they take other steps to make sure the public is not confused about the origin of their work this will also reduce the chances you can do anything to stop them for example. For instance if they have distinguished their work from yours by using disclaimers and/or clear and prominent notices at the point of sale and on any labels.

Passing off

Apart from the legislation discussed above, the law of passing off may help protect artistic style.
Passing off is designed to protect a trader’s “goodwill”; it provides a remedy to a person who suffers loss or damage to their goodwill due to another person’s misrepresentation. The emphasis is on protecting traders’ and businesses’ goodwill rather than consumers, but it often has the same results. As before, you can use the law of passing off if another artist is passing their work off as yours, and the remedies available are similar.
The differences between consumer protection legislation and passing off are slight and subtle. It is common to plead both causes of action if you go to court, just to cover yourself either way. If you are thinking of taking legal action you will need to get further legal advice about these differences and whether they are relevant. Generally you can assume the same considerations will be important when you plead your case.

Conclusion

Consumer protection legislation and passing off have the potential to provide relief to an artist who feels that their work is being copied and ripped off by someone else, but copyright remains the best means of protecting ones work. However, to be successful, you need to show that people are likely to be misled. Unfortunately, where the audience has never heard of you, or where they know what they are getting is not your work even though it looks very similar, you probably won’t be able to rely on the law to protect you.