Reality Check: When Appropriation Becomes Copyright Infringement

In this day and age, what does an artist really need to know about copyright? What exactly can legally and ethically be claimed as one’s copyright—and as copyright infringement? And how to make sense of news reports in December 2008 of a demand sent to a 16-year-old collage artist in London for appropriating a photo of Damien Hirst’s diamond-encrusted skull? Is this really about copyright, or is this about money, power, control, and artist-bad boy publicity?

To get some answers to these questions, I interviewed Paul Tackaberry, a copyright and trademark lawyer and counsel to Ridout & Maybee LLP [] in Toronto. What began as a general introduction to the ins and outs of art and copyright soon transformed into an eye-opening analysis showing how far standard art discourse may have steered away from the law: I was reminded that art historical precedents appear in no way to be airtight legal precedents. Plus “originality” in art appears quite disconnected from legal “originality.”

More about Tackaberry (LLB, LLM): he has over 20 years of experience in all aspects of intellectual property law, including prosecution, litigation and drafting of licenses, technology transfers, and contracts. He counsels clients from various countries on contentious matters such as infringement suits. Tackaberry has also taught IP and IT law at universities in Toronto, Montreal and Hong Kong and has published a number of articles in law journals. Over the years, Tackaberry has represented clients working in the areas of art, music, and publishing.

The following are excerpts of my conversation with Paul Tackaberry, who informs like an authoritative art critic with a cracking leather whip.

Robert Preece: Based on your experience, what are the top three things you think artists should know about copyright if they are new to this professional concern?
Paul Tackaberry: I’d advise they learn how copyright arises in respect to the work that they create. They should also know about how ownership of copyright works; for example, they should make sure that if they create a work on commission for someone else, or someone makes a work for them, that there is an initial agreement on who the copyright owner is, what the copyright owner can do with the work, and the specified payment of a fee—or no fee. The third area I’d advise is learning a bit about how to avoid getting sued for copyright infringement. This included how to incorporate other people’s work into their work and not going too far into the area of infringement. Within these three areas, there are a number of sub-issues, but what I’ve said is a general introduction covering most of it.

RP: What do you think are the top three possible claims of copyright infringement by an artist? Would one be: they’ve stolen my image?
PT: The main confusion that pops up is that one artist’s work copies another artist’s work because it is a similar subject matter. In copyright law, there is a distinction between ideas and expression. Are you familiar with this?

RP: Well, I know what you are generally saying in an art context, but not in a legal context. “Ideas” are the concept or where the artist is coming from, and “expression” is how the work is executed.
PT: Yes, that’s the legal context too. We are still at an abstract level and it’s quite a challenge to take this from the abstract to the concrete. An important thing to note is that this is a basic, common principle of copyright law. However, its application can get quite tricky.

Imagine there is a sculpture of a ballet dancer in an Arabesque pose, and let’s say it is carved from wood. Then there’s a second artist who also makes a sculpture of a ballet dancer in an Arabesque pose, but it’s made of bronze, or it’s rougher, or the depiction shows a flat foot instead of a pointed foot. No artist can copyright an Arabesque pose. This is still at the idea level.
But it’s when you get down to the “expression” level, to the actual pose, the actual texture, that determines when one is copied. You can copy the idea, or concept, but you can’t copy the expression. So many artists get personal about their work naturally. You can’t copyright subject matter even if it’s never been done before.

RP: You know the shark in the tank by Damien Hirst. Let’s say I make a shark in a tank, and I put it in formaldehyde like Hirst, I use a real shark, but obviously a different shark, and I use exactly the same dimensions. But I don’t say this is Damien Hirst’s work. I say it’s mine. Have I infringed on Hirst’s copyright?
PT: Possibly.

RP: Possibly?! Even if it is a different shark?
PT: Yes. Of course, a painting uses different paints and a different canvas. Of course you would use fresh material in a copy. One defense could be that the original doesn’t enjoy copyright, because it is not “original,” or it is too “trivial.” One common defense is that the “original” is itself a copy, and you cannot have copyright over something that is a copy of something else.

RP: Is it possible that the language and argumentation of “originality” in art is different than “originality” in these laws?
PT: Yes, it is possible. The concept of originality in copyright remains somewhat elusive. It’s very ephemeral, and it’s a subject of a lot of court cases. It’s something that is of great academic interest to me. For instance, it is commonplace to incorporate the work of others into a collage, or taking a music sample and incorporating it into rap music. While this may be a legitimate form of creativity artistically, it is questionable from a copyright point of view.

RP: Please take a look at two photos of artworks in the Daily Mail []. On the left is a photograph of Hirst’s diamond-encrusted skull; on the right is a photo of a collage by a 16-year-old artist. He’s appropriated the skull and has positioned things around and in front of it. My understanding is that this is not copyright infringement.
PT: Why do you say that?

RP: Because first there are images in front of the skull: the Kodak advert and the image of the book “How to be a detective” There’s also some sort of image behind the skull, and the man is holding up a spoon. There’s also a sliced piece of fruit. This places the skull source material into a different context. It’s a completely different image with a different aura.
PT: Is that how you see it? This is fairly non-contentious legally. Ask yourself, what portion of the original—and not just the quantity but also the quality—appears in the new work? If a “substantial portion” of the “original” appears in the new work, then that’s all you need for copyright infringement. This assumes the first image is “original.”

It seems arguable that there is a copyright infringement here. I think it would be difficult to argue that the new work doesn’t contain a substantial portion of the original. Quantitatively, about 80% of the skull is in the second image. The most interesting part of the skull, I find, is the larger diamond and design on the forehead. The large diamond adds to the uniqueness, and that feature is shown in its entirety in the new work. The only part that is not visible is really at the left bottom. Just because part of the image is obscured, doesn’t mean much.

RP: What if the Kodak advert was in front of the Skull Star Diamond?
PT: Then it’s less likely to be an infringement. Where did the 16-year-old get the photo of the skull?

RP: I don’t know. Probably off the Internet. Or maybe he somehow got the high-resolution publicity photo.
PT: If either is the case, then there’s an infringement of the photograph.

RP: I see the photo in this Daily Mail article is apparently the copyright of Reuters. This seems odd— except for cropping to the right, it looks exactly like the publicity photo to me! Then there’s the Kodak advert, the photo underneath it, and the piece of fruit. This is endless!
PT: This is the thing about copyright and the law—with this act of collaging, unless the copyright has expired on all of the pictures, each element is potentially a copyright infringement claim.

RP: I see. Now take a look at two images, a drawing by Vincent van Gogh and a painting by John A. Walker. John states, “I am producing a series of six paintings that interpret six large drawings by Vincent van Gogh that he never turned into paintings. These are therefore not exact copies or reproductions of existing Van Gogh paintings.” So you have the move from drawing to painting, and it looks like Walker has finished it, although there are probably distinctions here and there. He’s even put in Vincent’s signature. But you’ll see he presents this as his own painting. Now I think this is a clear example of copyright infringement, because the idea and the move from drawing to painting don’t matter. It’s about the expression, which includes the artistic composition.
PT: Well, he’s clearly made some artistic decisions on how to, in essence, complete the image as a painting. Probably Walker has the copyright of the end product. First, Van Gogh has been dead for more than 75 years so the image of the drawing itself is part of the public domain. But at the same time, his work might infringe on the copyright holder of the photograph of the drawing.

The issue actually is: did Walker recreate Van Gogh’s drawing himself, or did he somehow mechanically reproduce an image of the drawing, and then paint on top of that? If the former, then there’s no copyright infringement, since the copyright has expired in the Van Gogh original.

RP: Are you serious about this distinction? I understand that Walker recreated the drawing himself. He says he copied it, but did this with his own hand.
PT: This distinction makes all the different in the world. It’s very important. Please also note that if Van Gogh had not been dead more than 75 years, then the painting itself would be clear copyright infringement based on the expression. The copyright holder then would be the estate. The idea behind the artwork is a non-issue.

RP: Now take a look at Hymn (1999) by Damien Hirst []. In Julian Stallabrass’s book, High Art Lite (1999/2006), Stallabrass writes, “Hymn, a 20-foot-high scaled-up version of a Humbrol figure designed to teach anatomy to children[…] Humbrol unsurprisingly decided to sue over this overt act of plagiarism; Hirst was to settle out of court by donating an undisclosed sum to charity.” (Page 289.) So, here, Hirst apparently has copied this figure and made it monumental. So this is a clear case of copyright infringement, right?
PT: Presumably, yes.

RP: But the Hombrol figure has to be original. To me, the figure itself does not seem original. It’s a teaching tool and one probably sees these produced by different companies and they’ve been around for some time.
PT: True, but the issue again is the expression: the colors of the colon, the texture, etc. The threshold for originality is low. It does not mean “clever” or “creative”; one thing it does mean is “not copied.” If five companies are making these sorts of teaching tools, I’d imagine they are not all identical. I’m sure there have been decisions about color and texture.

We’re assuming here from the reading that the figures are identical and the scale has simply been increased. To determine if the Humbrol figure passes the originality threshold, more information is required.

RP: Next, look to the left and we see LeKay’s Study for Ying and Yang (1990) to the left. Now, obviously these are two different anatomical figures. But what do you think of LeKay’s work?
PT: Well, I’m not sure about the context here. If he bought that from a company, and referred to it as a ready-made, that’s not reproduction and not copyright infringement in itself. But if it were then displayed publicly, then in some countries that is a violation of the public exhibition right.

RP: Now there’s no issue about the copyright of an art idea, because ideas cannot be copyrighted, right? This seems the big problem. While art may try to claim ownership or originality of ideas, legally this is impossible.
PT: I’d agree. That is the reality.

RP: Next, let’s go to the Wikipedia page of LeKay [] and scroll down to the skulls. In June 2007, the Times Online ran a story titled “My old friend stole my skull idea,” []. Visually these images look nothing like the diamond skull. So then that leaves us possibly with the idea. So there’s no copyright infringement.
PT: Correct! At most, this is maybe some sort of argument for a lack of originality in an artistic sense, but I don’t see much here for a copyright infringement claim.

RP: I bet you see a lot of copyright infringement all over the place, don’t you?
PT: Absolutely. It’s widespread not only on a personal level, like copying music in the house, but also in business. That’s why, referring to the Jones article in The Guardian, he raises an interesting point: not whether the 16-year-old infringed on the copyright of Damien Hirst, but that Hirst reportedly chose to enforce his rights in this case. The question does seem: Why is he doing this?

RP: Then what is your practical advice on protecting copyright?
PT: The first piece of advice is to keep your eyes open. Keep in mind that you are responsible for policing your rights. So you need to get out there, do Internet searching, and keep your ear to the ground. And consider enforcing your rights bearing in mind that nobody is going to do that for you. This may seem obvious, but many people think there is some sort of mechanism in force that does this for them. And there isn’t.

Then when you identify an infringement, it’s important to determine that there’s a valid basis for complaint, that is, that the infringed work is original, and that you own the copyright of the infringed work, and that the infringing work reproduces a substantial portion of the infringed work. This may requires some expert advice.

To help my clients tune in, for example, I often first send them an overview sheet before speaking to them. I’ve found this helps people ask clearer questions so I can advise them more quickly. When a copyright infringement is determined, usually the next step is a strongly worded demand letter. The ultimate objective should be to curtail the infringing activities as soon as possible as opposed to aiming to get millions of dollars in damages paid. For the latter, damages often require going to court, and you’ve got to have funds for that.

Taking a claim through to a decision at trial would entail costs of at least USD $50,000, but often can run into the hundreds of thousand, or even millions. Here I’m referring to Canada and the U.S.

RP: Lastly, do you think reading news reports is helpful to someone who wants or needs to learn about copyright?
PT: Not really because you rarely get a full discussion about the issues in a news report. Lawyers are reluctant to discuss a current case in the media. For most, that is unwise. And many judges are not very keen on lawyers who do that. As a result, journalists end up describing one part of the case. Most government agencies have websites—the U.S. government for example has an excellent one. This is probably the best source.

How a lawyer learns in the U.S., Canada and U.K. systems is by reading cases, especially final court decisions. But please note, there often isn’t a final decision. Instead there’s a settlement. That’s largely because of the litigation cost that would result in a decision.

Robert Preece is a Contributing Editor of Sculpture based in Rotterdam.