It’s just one of those serendipitous things that, in my law practice, I get waves of similar matters thrown at me all at once. Maybe it’s a gaggle of writers with publishing or licensing deals one week, and the next week it’s a series of indie filmmakers looking for quick and dirty investor contracts. Lately, it’s been extremely perplexing and dicey infringement problems with visual artists.
This has been particularly surprising, because I’ve had very few of these “Is it infringement or not?” issues in the 20-or-so years I’ve been at this. Typically, the situation is that somebody just took an entire work and the issues are who actually created the work and whether there was permission to use the work. Sometimes it’s a matter of somebody’s hand in the cookie jar, like cutting and pasting off a Web site, and the only issue is how much the damages ought to be and whether we can collect them. But almost all the infringement cases I’ve dealt with have involved fighting over the same work, not two works that are really similar, with the creator of the older work crying foul.
Which is kind of weird because the fundamentals of what’s considered infringement often dominate my classes and lectures. Many people, artists included, think there’s a set of rules that dictate whether a work infringes, like a “5-note rule” in music or a “20-percent rule” in visual media. There’s not. Infringement is a wildly subjective thing that the law struggles to turn objective, and fails miserably.
The test is whether the second work copied from the first, and if so, if the second work took too much of the “protectable elements” of the first. Duh. Not much help there. But this test does set up endless metaphysical discussions, technical discussions, esoteric discussions, and moral discussions. Then somebody always raises the “There’s no such thing as originality” canard. Or quotes Picasso: “Mediocre artists borrow, great artists steal.” Which wasn’t even an original quote by Picasso. He stole it from Igor Stravinsky, who stole it from Henry James, who nicked it from Oscar Wilde, who got it from . . .
Anyway, over the last couple of weeks I’ve had new clients on both sides of this fence, artists claiming to have been ripped off, and other folks accused of ripping off other artists.
In none of these cases were works simply reproduced. But in all of the cases the second work was aware of the first and borrowed liberally. In all of the cases, one looks at the junior and senior works and says, “Well, yeah, there it is.” And in none of the cases can a credible fair use argument be made—the junior works don’t comment on the senior works, nor are they transformational in purpose, media or message. The junior works just clearly and boldly took from the senior works. But is it infringement? Or is it inspiration?
This is where the law comes in, and as I said before, the law fails miserably. There are two tests the courts have developed to analyze claims of infringement like this. The junior user, the alleged infringer, always tries to hide behind the so-called “subtractive” test. The works are picked apart with a fine-toothed comb and all the dissimilarities are pointed out: “The clouds in the sky are different,” “The road is in a different place,” “The film exposure and color intensities vary wildly,”—stuff like that. The longer the list the better. The argument is that all that’s left after this surgical chipping away of details, all that was really copied, were ideas, and ideas can’t be protected by copyright. Not a bad argument. We don’t want to give anybody a monopoly over an idea.
The “victim,” on the other hand, is going to argue the “totality” test. Here, the “infringer” took the “essence,” the “look and feel,” the “heart” of the first work. Not a bad argument either, especially in the cases like mine, where you look at the two works and say, “Well, yeah.” You can’t just rearrange the chairs and say you’re now in a different house.
The problem is that, with all of my present cases, well-made arguments under each test come to opposite results. Trust me, I’ve been making them over here for weeks. Under the subtraction argument, no infringement. Under the totality test, absolutely infringement. Not even close.
So, what do we do? March off to court? Let a judge or jury decide? Nobody’s going to admit it, but that would be insane. Judges and juries are all well and good, but putting questions like this before them would be tantamount to a coin toss. With lawyers, it’s worse than a coin toss, and WAY more expensive and time-consuming.
So we’re left with the two sides huffing, puffing, bluffing, threatening, both sides knowing in their heart of hearts that it’s just so much sound and fury, signifying nothing.