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Copyright is a notoriously complicated area of the law; it involves a variety of different factors, many of which seem very subjective, and infringement cases often come down to a court making the call as to whether something is or is not an illegal “copy.” This can be problematic since independent artists who have just as many rights as large corporate copyright owners many not have the resources (either financial or legal) to defend themselves against infringers. Artist John Unger has recently been writing on his website about his own legal battles involving possible imitations of his work. The Michigan-based sculptor makes “sustainable design with an edge,” and is known for his Artisinal Firebowls, works of art created from recycled propane tanks. As a smaller, independent artist, Unger might never have noticed the similar works of a manufacturer if it were not for a fan confusing the other sculptures for his work. Unger says that he tried to protect his copyright and prevent this confusion by approaching the other party – who then filed a lawsuit of their own. Unger writes of his suspicions that this was simply an attempt to legally intimidate him since he does not have the financial resources to wage a lengthy courtroom battle. For artists like Unger, even before the court system gets involved, it can be difficult to determine whether their work is actually being copied – particularly in the legal sense. In U.S. copyright law, “substantial similarity” is a necessary element when proving in court that an infringement has occurred, but this is a nuanced term, and courts apply a variety of different tests to determine just how similar two works are. For example, one thing considered is the “total concept and feel,” a test that was famously applied in a case against McDonalds, when the H.R. Pufnstuff children’s television show claimed that the fast food chain’s ads were copying the “feel” of their program. Another issue that those like Unger who create “functional” art must consider is how separable the aesthetic aspects are from the utilitarian ones since only the aesthetic part is given copyright protection. Functionality, or invention, is covered under patent law instead. It is of course for a court to decide if Mr. Unger indeed has the law on his side in this case, but his situation is a reminder that artists have the legal right to defend their work. It’s a tricky question, but luckily artists have intellectual property lawyers to help them figure out when imitation stops being flattering and starts being illegal.
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Imitation Is Not Flattery: An Artist’s Copyright Battle
