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.

R.J. 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.