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Daniel Grant

Daniel Grant

Posted: March 22, 2011 04:34 PM

If Works of Art are 'Strikingly Similar,' Is That a Problem?


One talks of "drawing from life," perhaps of being a "plein-air" artist, but the fact remains that most art looks more like other art than like life, nature or something else in the outside world. It is through the similarities of one artwork to another that a history of art is identified and described; having reference to one group of works of art helps viewers develop an understanding of others.

Cubists, Impressionists and other artists associated with a plethora of other art movements and styles are grouped together because of how close their work resembles each others. So far, so good, but works of art that look too much alike veer into the realm of copyright infringement, at least in this day and age (Braque and Picasso, whose cubist work often looks identical, did not run to lawyers). The music industry is long acquainted with problems of this sort -- former Beatle George Harrison was found to have (subconsciously?) infringed the Chiffons' "He's So Fine" for his song "My Sweet Lord," for instance, and a judge decided that Michael Bolton's song "Love Is a Wonderful Thing" contained the same melody and internal structure as the Isley Brothers' song of the same name. The design world also has its own disputes over originality.

At another time, I will look at the March 18th decision in U.S. District Court in Manhattan, in which artist Richard Prince was found to have infringed on the copyright of a French photographer in paintings that were exhibited at the Gagosian Gallery in New York City in 2008. Today's topic is when creative works by different artists are "strikingly similar" and when those similarities may lead to legal action.

Let's look at some examples: In 2004, Thomas Shine, an architect in Brookline, Massachusetts, brought a lawsuit against another architect David Childs, claiming that Childs' design for New York City's Freedom Tower strongly resembles one that Shine had presented as a student at Yale, which Childs had seen while taking part in a studio critique and was quoted as singling out in the Yale School of Architecture magazine. The courts refused to dismiss the lawsuit, and the case was resolved privately in 2006. In another example, a design for the logo of the Baltimore Ravens, submitted by a security guard and amateur artist, was found by a Maryland district court jury to have been appropriated illegally by the football team when it created its insignia. An appellate court affirmed that ruling, claiming that there was a "striking similarity" of the Ravens' logo to the one Frederick Bouchat had sent in. Even though there was no proof that anyone in the Ravens organization had ever seen Bouchat's design, the judges determined that there was a strong inference that various people within the ball club had seen the image, resulting in the team's logo that looks like a copy.

In order to prove copyright infringement, two elements need to be demonstrated: The first is that the individual bringing the complaint is the owner of a valid copyright, which could be established by registration of the image with the U.S. Copyright Office; the second is either direct evidence of copying, which is usually not available, or substantial similarity as determined by an "ordinary observer" in a court of law. Two or more works of art may have the same title -- think of all of the "Madonna and Child" paintings that have been done -- without breaking a law, except if the title is particularly unusual and the duplication could be shown to be confusing to the public.

In the fine art realm, the law provides wide latitude for artists pursuing the same subject matter, style and inspiration. Jurist Oliver Wendell Holmes wrote, "Others are free to copy the original. They are not free to copy the copy," by which he meant that two or more artists might paint the same still-life scene, even coming up with largely identical images (each separately copyrightable), but an artist may not slavishly copy another's version of that still-life with impunity. Disputes may arise between artists whose work is similar, but copyright infringement would be a difficult claim to prove. In one of the few instances in which one artist sued another, California glass artist Richard Satava, who had designed and sold jellyfish sculptures "floating" in a container since 1990, brought a lawsuit against a Hawaiian glass artist Christopher Lowry, who had also begun producing glass-in-glass jellyfish sculptures in the 1990s that resembled Satava's. A district court judge ruled against Satava in 2003, claiming that the Californian could not copyright the idea of producing glass jellyfish sculpture and that the physical similarities reflected not copying but the form following the concept.

"It would be dangerous to limit an artist's right to adopt a style or technique," said Paul Rapp, a lawyer in Housatonic, Massachusetts who has represented a variety of artists. "Art builds on itself; if artists start to claim a proprietary interest in their artwork, the advance of art gets stopped in its tracks."

While the courts could not -- and would not want to -- punish followers, collectors reward those artists who developed certain ideas and techniques first with higher prices. Additionally, artists themselves have ways of policing their ranks, ensuring that look-alikes are not given prominence. An example of this is the Artists' Woods Group Show Competition in Amagansett, New York, which set as one of its entry rules and requirements that "Derivative work that replicates the design imagery, palette, compositional devices, or content strongly identified with another artist's personal style cannot be considered."

There is recourse to the law when the distinctive "feel" of an artist's work -- the totality of its style, handling of paint, subject matter, color, use of light and perspective (none of which are in themselves copyrightable) -- is copied, causing collectors to be uncertain about which artist did which work. This is a subcategory of trademark law, referred to in legal parlance as "trade dress," in which the look or feel of the artwork is strongly identified with a particular artist. Performers Bette Midler and Tom Waits successfully have sued companies that advertised products using unseen singers in commercials who sound remarkably like them, and fine artists Itzchak Tarkay, Paul Wegner and Howard Behrens have also prevailed in legal actions against other painters who have imitated the elements that make their work unique. The courts apply two main tests for trademark cases in determining whether or not one artist may have stylistically copied another: The first is establishing that the allegedly copied work is identified by the public with the particular artist (in legal parlance, the art has acquired a "secondary meaning"); the second is proving that the imitation is likely to cause confusion in the market. "What better for showing probable confusion than actual confusion?" Joshua Kaufman, a Washington, D.C. lawyer who represented Paul Wegner, said. "Within a span of one week, Wegner received calls from three of his collectors who asked him, 'What happened to your work? It looks like it deteriorated.' They had seen imitations of Wegner's work from a distance and just assumed it was Wegner's. That can affect an artist's reputation as well as sales, if people think the quality has gone downhill."