Perhaps it’s my imagination, but the recent delivery of the IAL’s Diploma in Intellectual Property and Collections seems to have coincided with the emergence of a series of fascinating copyright cases. Each time I’ve planned to put pen to paper (or fingers to keyboard) to offer a few thoughts on one intriguing matter, another seems to have caught my attention. In light of this embarrassment of riches, I’ve opted for a broad brush approach in this short post, teasing out a few nuggets from three quite different cases, each from a different jurisdiction. I suspect that we’ve not heard the last from each of these, however, so anticipate future opportunities to delve further into some of the important issues they raise.

The first case involved contemporary artist, Maurizio Cattelan, known for his satirical sculptures (including Comedian, a 2019 work delightfully described by the New York Times as ‘potassium-rich’, featuring, as it did, a banana stuck to the wall with duct tape). Cattelan’s gallery (Gallery Perrotin) is facing a claim in the French courts from sculptor Daniel Druet who is seeking attribution for nine works based on original wax models he created for Cattelan, plus more than €4.5 million in damages. The dispute brings into sharp focus the tension which pits fundamental tenets of copyright law based on authorship, originality and expression, against the practices of conceptual artists. According to reports, Druet contends that he received only vague instructions for the works from Cattelan and expressed his own artistic touch in the sculptures, bringing life to the characters portrayed. In response, lawyers for Perrotin described how Cattelan’s instructions were conveyed with “mathematical precision”, arguing that “Druet can be replaced by another sculptor, but Cattelan cannot.” The trial began on 13th May and the verdict is expected in early July. Whatever the court decides, the implications for conceptual art are potentially far-reaching – according to Perrotin (as reported in Le Monde), risking “the end of contemporary art in France” should Druet’s claim prevail.

On a slightly less dramatic, though no less consequential note, a decision from the UK High Court in early June broke new ground in recognising a fictional character as an independent copyright work for the first time. The case of Shazam Productions Limited v Only Fools The Dining Experience Limited and Others concerned the character Del Boy, well-known to UK audiences as the lead role in the cast of the popular television sit com series Only Fools and Horses. The defendants had created an interactive ‘dining experience’ show which featured the Del Boy character (amongst others from the series), replicating his appearance, mannerisms and cockney patter, much-loved by generations of Only Fools viewers. Acknowledging the absence of any English case law holding copyright to subsist in a fictional character, the court engaged first principles in assessing whether the tests for copyright protection were met. In accordance with EU jurisprudence, these require: firstly, that the work was original, being an intellectual creation of its author expressing his free and creative choices; and secondly that the work was expressed in such a way that it was identifiable with sufficient precision and objectivity [see paras 92-113 of the judgment]. The court had little hesitation in concluding that the Del Boy character qualified as a copyright work on those grounds. An assessment that the character had been copied in whole or substantial part by the defendants (as required for a finding of infringement) swiftly followed.

The next step was to address the defences raised by the producers of the dining experience show. This, again, involved the High Court delving into relatively untrod territory – to analyse one of the copyright exceptions introduced to the UK legislation in 2014, allowing use of a copyright work for purposes of parody and pastiche (see section 30A of the Copyright Designs and Patents Act 1988). As far as parody was concerned, a key point here was that to benefit from the exception, the purpose of the imitation must be to make some kind of comment, or express an opinion [see para. 176]. Mere imitation is not enough to constitute parody [para. 180]. In this case, replicating the Del Boy character did not evoke the original work in order to mock it, or make any form or comment or critique, nor for humorous effect per se, since the humour was present in the original work. Rather this was a case of  ‘wholesale transposition’ and as such could not amount to parody [para. 194]. The pastiche defence met a similar fate. In short, this defence might apply where the style of a work is replicated or various elements are put together into an assemblage, but this was not the case here.

From a first for copyright in the UK courts to a first in the US courts, where a tattoo artist is facing trial in California for allegedly infringing the copyright in a photographic image. It is thought to be the first time a copyright infringement suit has been brought against a tattoo artist on account of an image inked onto a client’s body. The artist in question is celebrity tattoo artist Kat Von D; the photograph, an iconic image of jazz musician Miles Davis taken by photographer Jeffrey B. Sedlik. The tattoo was apparently created for free by Von D for an acquaintance, and was brought to the attention of a wider audience when Von D posted images on social media, both of the finished work and the process of creating it (with the Sedlik photograph featuring prominently in the background in the latter image). Cross-claims for summary judgment between Sedlik and Von D were denied by a recent order of the California District Court which found triable issues on a number of points, requiring the case to proceed to jury trial.

The submissions of the parties so far suggest that the arguments will focus on the fair use defence. Followers of copyright law may recall that this has been debated in several high profile cases in the US in recent months, with differing results – see our previous posts on two contrasting cases here. Despite the visual similarity between the photograph and the tattoo in the current case (and it’s worth taking a look at them set out side by side in the court order) Von D claims that her tattoo was transformative. Not only did it create a ‘new message or meaning’ because of (i) the personal attachment of her client to Miles Davis and his music, and (ii) the fact of a tattoo being permanently imprinted on the body of a person to whom it has special significance, but also, thirdly, because the artist had added her own interpretation to the image, drawing it in freehand and adding ‘the appearance of movement’ and a ‘sentiment of melancholy’ [see pp. 20-21 of the Order].  Whilst apparently somewhat sceptical about the first two lines of argument, the court found the third sufficiently convincing to conclude that a triable issue as to ‘transformativeness’ had been raised.

The timing of this case is particularly pertinent in light of the pending appeal in the much-debated case involving the Andy Warhol Foundation, due to be heard by the US Supreme Court in October 2022. This case also focuses on arguments of fair use and whether the Foundation’s use of a photograph was sufficiently transformative.

All in all, then, it’s exciting times for copyright law, with some fundamental issues set to receive judicial attention. Watch this space for further comments as these cases unfold.

Image: CC0, via Wikimedia Commons