I Like Your Style! Part II: Is the copycat passing off?

Simon Etherington is a Legal Officer at Arts Law

In the last edition of ART+law we considered the question of what rights an artist might have in the style of their work from a copyright point of view. The answer, basically, was that copyright does not protect styles, but only stops people from copying specific artworks. This article considers the how laws designed to protect consumer and business interests can be used to protect an artist's style. Specifically it considers trade practices/fair trading legislation and the common law of passing off.

Consumer protection legislation

Both federally, and in each State, there is legislation designed to protect consumers from bad and unscrupulous trading practices. The Federal legislation is called the Trade Practices Act. Each State has an equivalent Act called the Fair Trading Act. These Acts provide that a person must not engage in "misleading or deceptive conduct in trade or commerce". The Trade Practices Act applies only to companies, while the State-based Fair Trading Acts apply to other business structures, including sole traders and partnerships.

The meaning of "misleading and deceptive conduct" is very broad and is not further defined in the legislation. 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, 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 actually used a false name belonging to another artist. This made it relatively easy to say there has 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 impugn 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 no chance of deception). Therefore a product's marketing and distribution channels are relevant. If you have a great reputation at the Salamanca markets in Hobart, but the person who is copying your art only sells in Queensland 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. 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 common 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 relevant.

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. 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.