LEGALLY SPEAKING

In the world of post-modernism, everything that is old is now being recycled, and used as the inspiration for the new.

In fashion we have seen the revival of the 1940's and the 1960's, and in art (including textiles) there are numerous Creatives who are using previous original works to produce their own creative works. So, in a post-modernism world, just what is the deal with appropriation?

Copyright law recognises that you can use other works to produce an original work. This still sees the issue of appropriation being a hot topic that comes down to a comparison of the original work and the copy. In each individual case, a copyright authority would need to see the original work that led to the inspiration, and the work that it was used to produce. But there are some basic rules that may assist the Textile Creative in understanding when to seek professional advice on this issue.

A basic rule is that people can make their own art work using other people’s art works so long as they do not copy a substantial part of the original art work, and they use their own work skills and effort to produce the new work. By using their own work skills and effort they can produce a new original work from parts of other works - it becomes what is called a compilation - or in artistic terms, a collage.

The important issue though, when making a compilation, is that it may still infringe the copyright in the original work if a substantial part of the original art work has been reproduced in the new art work. What comprises a “substantial part” is not defined in the Copyright Act (although the act recognizes in s 14 that copying a substantial part is copying of a complete work).

The definition of ‘substantial part’ must arise from specific cases, and is a question of facts that are assessed not just on the basis quantity alone. It is an issue that involves looking at the quality of the work that has been reproduced. In this sense quality does not mean, “Is it a highbrow art work,?” - but rather an issue about the original features and essential qualities of the original art work being reproduced.

Let’s say the artist admits that 1/6th of the original art work is used in the new inspired derivative compilation work; this does not necessarily mean a substantial part has not been reproduced, as the issue of a "substantial part" looks at quality as well as issues of quantity.

The meaning of substantial part, from the cases such as Milpurrurru v Indofurn Pty Ltd (1994) 30 IPR 209 looks at issues such as: Have the essential features of the original art work been reproduced in the subsequent work? Or: Has the essence of the work been reproduced? (The Milpurrurru case was about the copying of aboriginal art, and the substantial part was the copying of some pictures of the central motif).

This is why there needs to be a visual comparison, since looking at the art work and the derivative from an objective perspective may mean that the 1/6th does not use the essential features of the original art work. Meaning there would not be an infringement.

With copyright there is also the other issue that for there to be an infringement, there has to be an objective similarity between the original work and the new work, such that a reasonable person can (from an objective viewpoint) see the original in the derivative work. Now this issue often means that changes to the original, and how the parts are displayed in the new work, may mean that there is no objective similarity to the original work!! So if the other 5/6ths of the work change the original work, to the degree that it is objectively different, there will not be an infringement.

In this post-modern era of appropriation there are works that can be used without there being an issue of infringement. These are works
that have become public domain works in that the term of copyright has expired. The copyright term of protection was increased on 1st January 1996, to the author’s life plus 70 years, and this gave authors and artists who died between 1925 and 1945 an additional windfall in that their works would have been protected for 50 years only from the date of death. All were given an extension of 20 years. So if the works being appropriated come from artists who died before 1925, then they can be used with impunity. See for example the uses made of the Mona Lisa and other classical works in advertising and derivative art works. □