LEGALLY SPEAKING

PAUL SUGDEN on Ownership: STYLE and the LAW

This is an excellent topic to raise for the continuation of the series of protection articles started with the "Plagiarism techniques and processes" (last issue, #61) because the issue of style in the visual arts is often considered in the category of an idea. Ideas are protected by patents or as confidential information (issue #61). Usually the idea of how to weave or to paint, etc is not protected by a patent as once it is disclosed it is no longer new or novel, nor is it confidential.

How then does the law protect a style? Generally this occurs in the same way that a person protects his or her reputation.

Let's explore the concept of what is a style? The Coburn tapestries that have been used to great effect in churches and theatres are considered a style; people refer to paintings as being in the style of Titian, Rembrandt, or in a more modern context dry red landscapes as being done in a Drysdale or Pro Hart style. Quilts are often described as lover's knots design or Amish, flower garden, or cottage garden etc. These styles are important as the means by which consumers of creative work recognise a favourite textile or artist. How the law protects the concepts and reputation (tort of passing off) rather than the protection of the actual expression used (copyright, issue #61). This is where confusion occurs in the general community as there is the belief that concepts of plagiarism and copyright infringement protect an artist's style of painting and protect an artist's style of painting and allow them to prevent others using the same style. This is incorrect, as the policy of the intellectual property laws such as copyright is to allow ideas (subject to the comments about ideas in the previous edition of this magazine #61) and styles to be freely used to enable the community to develop further. Artists originally learned by copying the style of the masters before developing their own style, for example.

Copyright law will therefore not protect a style on its own - for example when cow prints were the rage, or when the sun and moon designs were a must-have accessory. Copyright says everyone can design and draw their own cow print or sun and moon, and as long as they have not copied anyone else's sun or moon design or cow print there is no breach of copyright.

Copyright protects the form of the expression, not the idea. Two artists, Kate Smith and Louis De Lazzo painted scenes of central Australia in a similar style. Neither of these artists can prevent the other from painting in the same style. The only rights they have under copyright are that they can prevent others copying the actual form of expression - being the actual paintings they produce.

Similar issues have arisen with the artist M S Cook who began painting scenes with parts of the birds or animals coming out of the picture into what was originally conceived as the white border. This started a trend in its own right, but she could not prevent others utilising the style of painting.

So far it appears to be a futile exercise for the artist to obtain protection for their style. However the law does provide protection for an artist's style under the tort of passing off, or under the Trade Practices Act. This occurs where a representation is made that can be said to mislead or deceive the public.

These actions will protect the form of the goodwill and reputation that an artist builds up in the style of their painting. In its classical form, the tort of passing off occurs when another artist or crafts person represents their goods or services as being those of a competitor by dressing up their products to look the same, in such a manner as to mislead customers into thinking that they are purchasing the competitor's artistic work.

The requirements are as follows:

1. A misrepresentation that the competing artist is representing their art works as the works of another artist. Regrettably, the fact that most artists (even if they use the same style as another artist) will sign the work as their own is sufficient to negate the issue of a representation, particularly if the work itself is not a copy of the original artist's own work.
2. The representation is made in the course of business.
3. The representation is made to the artist's actual or prospective customers and in such a way as to injure the business or goodwill of the original artist. This element means the representation must be made to a trader's actual or prospective customers with the intention that the trader's business or goodwill will be injured. This may be hard to prove in such a diverse group as the artistic community where the person using the style is in a completely different territory where the original artist is not known.
4. Damage to the original artist or loss of goodwill must occur. Ultimately the representation is to lead to damage to the original artist's business and loss of goodwill. This is often difficult to prove in that all these elements exist to justify the original artist being able to prevent another artist using their style.

The remaining way to protect the reputation you have developed as an artist in a style is under the Trade Practices Act 1974 or the state equivalent state Fair Trading Act. These acts provide a statutory equivalent to the tort of passing off, by proscribing that a corporation or individual shall not in the course of trade engage in conduct that is misleading and deceptive or likely to mislead or deceive. Proving a breach of this section requires a similar assessment to those done above in the issue of passing off but there is no requirement for damage to have occurred (Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177).

What an artist, weaver, or fabric producer would have to prove is that the action of the person using the same style as them is misleading or deceiving the relevant section of the community into believing that the article is produced by the original artist. This may be very difficult to prove in the fibre community or artistic community.

Regrettably the first person to use a new style is often the person remembered for it. The law protects the creative output in the form of copyright expression but does not protect the style of work of an artist unless there are representations that the work originates from the original artist or craft producer. Unfortunately the community at large is unaware of this and mixes the concept of plagiarism with the issue of reputation.