Very often artworks of all kinds are based on or inspired by the work of other artists. Indeed some people think that there is no such thing as an entirely 'original' work and that all art owes a debt to the work that has gone before. At the same time people often invest a lot of time and effort into developing a distinctive style of work and often feel quite proprietorial about it. What protection does copyright offer these artists?
Copyright does not protect styles
In a recent decision of the Full Federal Court, the Court reaffirmed the fundamental legal principle 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 the recent Full Federal Court 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 to the second artist. The Court found that this was not, of itself, enough to amount to copyright infringement.
Inspiration or imitation? How does the court decide?
How do you tell the difference between one artist legitimately being inspired by another artist and someone illegally copying another artist's work?
The Full Federal 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; and
(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 – more on this below).
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 ‘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 recognizable 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?
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 generally is not true and is never true in relation to visual artworks. Even very small parts of works can be 'substantial' and often, especially in relation to musical works, it is precisely because the part is distinctive and memorable that others want to copy it.
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 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 okay 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 reaches is so complex that it is "practically impossible" that the combination of generic features could have been arrived at independently.
When it comes to copying generic features 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 among the rationales for the existence of copyright law and in some cases this type of consideration might be enough to tip the scales.
Lastly, the courts have drawn a distinction based on the subject matter of the art work. They will take a stricter approach for subject matter that is a concept or idea which exists only in someone's head, as compared with subject matter which represents something that actually exists – like a human body or the Sydney Harbour Bridge. This is because ‘real' subject matter is less original and therefore less distinctive of the original artwork. This does not mean you can copy artworks which are based on ‘real' subject matter. Rather, it means that if you copy only the subject matter of an artwork this is less likely to amount to the taking of a 'substantial part', especially if it is ‘real' subject matter.
A few other points:
If someone comes up with a work identical to yours independently (eg. 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 the original work, is not recognised this could be infringement of your right of attribution. And if the copier passes her or himself off as the author of your 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 other way, this may be an infringement of your right of integrity in your artworks.
Only the copyright owner or 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). A 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, artwork owners usually cannot take legal action to stop other people from making copies of it – only the artist, being the copyright owner, can do this.
- This analysis has been applied to a visual arts setting, however the same principles apply in relation to other arts and copyright works like music, writing and film.
As always, if you are concerned about copyright infringement you should seek further legal advice.
So far we have considered the copying of a style only from a copyright point of view. In Part 2 we will consider the availability of other causes of action like passing off and misleading and deceptive conduct. Watch out for Part 2 in a future edition of ART+law!
 Cummins v Vella  FCAFC 218, 16 July 2002.
 This consideration made a critical difference in a recent case where the Court held that Telstra’s copyright in its telephone directories had been infringed by another company who copied the names, addresses and telephone numbers from the directories. The time and money Telstra invested into creating their telephone directories was an important basis for the Court’s finding of infringement in that case. However, it should be noted that this was not a case about whether the part taken was substantial but rather whether the list of names was original enough to attract copyright in the first place.