Don’t Be a Copycat

By Joshua Kaufman, Esq. © 2002

Take this refresher course to make sure you’re not committing copyright infringement.

We often hear such phrases as "all art is derivative" or "artists have copied the works of other artists for centuries." While these statements may be true, American copyright law holds that there are limits to copying, whether you’re selling your art, entering it in competitions or simply practicing your technique.

In my 25 years as an intellectual property attorney, I’ve handled countless cases of copyright infringement. Still, I find it surprising how little most artists know about copyright law, especially those whose very existence depends on it. What does copyright cover, and how can you make sure you don’t run afoul of the law?

The Ground Rules

Copyright is a form of intellectual property that protects original works of art, drama, literature and music, among other things like computer software. In terms of artwork, sketches, drawings, paintings, sculpture and photographs are all protected. Keep in mind that copyright law protects the expression of an idea, not the underlying idea or the style. So if you regularly look to others’ work-or photographs in magazines, books or newspapers-for inspiration, make sure you don’t appropriate anything other than the underlying idea unless you have that artist’s written permission. Otherwise, when you start to copy a protected work, you’re infringing on the original artist’s copyright.

Most people think that only "verbatim copying"-duplicating an entire work exactly-is all that’s considered infringement, but it’s not. For example, changing the medium won’t protect you at all from a copyright infringement lawsuit. Making a sculpture out of a painting will still be an infringement if the works are visually substantially similar (see the next section for more on this concept).

For every type or degree of copying you can think of, there’s some legal argument from other areas of intellectual property that may still apply. Here are two you should know about:

"Look and feel" copying refers to taking the overall design of a particular piece (not to be confused with style). Most of these cases are in the computer and greeting card industries. For instance, if you were to copy the type of sentiment, pastel colors and the typeface of a particular greeting card, that could qualify as an infringement. The same could be said of appropriating the typeface, lighting, and simple imagery of an Absolut vodka ad.

"Trade dress" is a related area of trademark law, and there are a few cases that do protect an artist’s rights. An example of "trade dress" is one artist doing cutting-edge art that no one else is doing, and then someone copies that. "Trade dress" is broader than "look and feel," and relates more to the overall style of one’s work, but it still doesn’t protect style, per se.

Fragmented literal similarity is taking parts of a work and incorporating them into a new work. Even though the overall work is different, you’ve copied parts of someone else’s work or works exactly, such as the sun and people from this painting or clouds and a couple of buildings from that painting. It’s still considered a copyright infringement. The main difference between fragmented literal similarity and verbatim copying is the amount that you’ve copied.

Take a Test

There’s no simple, firm guideline as to how much you have to change from one work to another to avoid infringement. Such statements as "All you have to do is change a little bit," "5 percent," "20 percent" and so on have no support in the law. Ignore them. The test for copyright infringement is whether the two works are substantially similar. Substantial can be looked at in two ways: quantitatively and qualitatively. Not only does the legal system look at the amount of material copied, it also considers the importance of the portions copied. This concept is illustrated very well in a case in which the U.S. Supreme Court found that copying 300 words of an 80,000-word book was an infringement. Those 300 words were that important to the book.

However, in fine-art cases, the courts usually adopt what’s known as the "ordinary observer or audience test," which is how the judge or jury determine substantial similarity. There aren’t any expert witnesses and testimony providing detailed analysis, nor dissection of the artwork to determine whether a work is substantially similar. What’s used instead is an immediate visceral reaction to the two works when looking at them overall. This test isn’t universally followed by courts, and has had its critics.

Crime and Punishment

So what’s the worst that can happen to you should you be sued for copyright infringement and found guilty? Plenty. First, you’d have to destroy all your infringing artwork and any products made from it, and pay the other artist whatever he or she lost and all the profits you earned from the infringing art (actual damages). If the artist filed a copyright registration before the infringement, you may instead have to pay statutory damages ($750-$150,000 per infringement) and the injured party’s attorneys’ fees. On top of that, your reputation in the art industry would be ruined.

What You Can Use

To keep your good name and your money, you do have several options. First, if you must look to others’ works, be sure to take away only ideas. That means you can understand the art’s concepts, be inspired by it and then create your own work using your own ideas without infringing on the other artist’s copyright. American jurisprudence believes in the dissemination and widespread use of ideas and their free flow through society, and, as such, doesn’t provide protection for ideas. (There are areas under patent and unfair trade competition law, or by contract, where ideas have limited protection, but they usually don’t apply to the visual arts.)

Another option is to take inspiration from works in the public domain, which are works that are no longer protected by copyright law for one reason or another. Many, many artworks have fallen into this category-works published in the United States before 1922, those published without copyright notices before March 1, 1989, and other works that haven’t complied with various formalities in the United States. Be very cautious if you’re working from a non-American artists’ paintings or photographs. When the United States joined the Bern Convention in 1989, foreign artists had their rights restored in this country for works that were lost due to not complying with American requirements. So you must take extra care in reproducing their works.

When a work is in the public domain, it and its elements can be reproduced in new artworks without the risk of infringing. Ascertaining whether or not a work is in the public domain will take some detective work, and you should avoid making easy assumptions.

Finally, and most importantly, you can rely solely on your imagination, creating works from the objects, scenes and people around you. Using your own creative spark with every artwork will keep you from taking too much-a "substantial amount"-from someone else’s work.

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Joshua J. Kaufman, Esq., is a leading art and licensing attorney at the Venable, Baetjer, Howard and Civiletti law firm in Washington, D.C. He’s also been named general council for the newly formed Art Copyright Coalition, a group of fine-art publishers, artists, licensing agencies and licensees dedicated to combating worldwide copyright infringement. This article was adapted from one that originally appeared in the March 2002 issue of Art Business News.