Copyright protects artistic creations, but what about artist's style? Our returning author - Andrea Quintanilla - provides comparative overview of respective regulation in Europe, the USA and the Andean Community
Andrea Quintanilla
Protection of the artist's style: Comparative law
Copyright gives protection to intellectual creation that is original, covering a wide range of works such as: written works, artistic works, musical works, dramatic and choreographic works, computer programs, films and multimedia products. Thus, the way in which ideas are expressed is protected, and it is this expression that gives originality to a work.
However, copyright does not grant exclusive rights over ideas or facts, but over works.
Although it is true, lawyer Diego Guzmán says that it is often difficult to differentiate between ideas and expressions of ideas in practice. This can be seen in the case of works of art if it is the artist's own style. [1]
In the following, we will look at the development of the subject in general within the European Union, the United States and the Andean Community:
EUROPE
With regard to the European Directive, it has no rule protecting the artist's style, but considers "pastiche" as an exception and limitation to copyright. While the Directive allows its member countries to determine whether pastiche is anexception and limitation, it implicitly recognises that the rights of the rights-holder would be infringed in countries that do not incorporate the exception.
Let us first define "pastiche". According to the Royal Spanish Academy, the term pastiche is the imitation or plagiarism that consists of taking certain characteristic elements of an artist's work and combining them in such a way that they give the impression of being an independent creation. [2]
Spain provides a good example, where they introduced the pastiche limitation in 2022, reinforcing the legal scope of multimedia expressions and constructions that are replicated and shared via social networks to the public to great acclaim (such as memes). This limit is also extended within an analogue framework. Article 70 of Royal Decree-Law 24/2021 states that pastiche, which does not require the authorisation of the author or the owner of the work to make modifications, must clearly be intended as a joke.
Thus, Spanish law takes into account the need to innovate, as a result of new digital technologies that develop new forms of use.
It should be noted that the European Directive 2001/29/EC states in article 5 that member countries may include exceptions and limitations to copyright in relation to caricature, parody or pastiche.
Pastiche, as Fredric Jameson puts it, constitutes a kind of parody, both of which "involve the imitation or, better still, the imitation of other styles and, in particular, of their stylistic mannerisms and criss-crossings". [3]
UNITED STATES
In the case of the USA, the artist's own style is protected in court. This is thanks to the case Steinberg v. Columbia Pictures Industries, Inc. (1987).
Throughout the case, plaintiff Steinberg claimed that Columbia Pictures Industries, Inc.'s promotional poster for the film "Moscow on the Hudson" infringed his rights in the illustration he drew for the cover of the 29 March 1976 issue of The New Yorker magazine. Steinberg sued the film's producers, promoters, distributors and advertisers for copyright infringement. Also involved were RCA Corporation (RCA) and Diener Hauser Bates Co. (DHB) with Columbia for the film. Other defendants were later added to the complaint pursuant to a memorandum decision on the court on November 17, 1986. The latter were divided into two classes of defendants: the affiliates of Columbia and RCA who were handling the distribution of the film nationally and internationally, and the owners of the major newspapers that published allegedly infringing advertising. [4]
That poster featured the same style of stroke, visual composition and perspective as the work created by the artist Steinberg, however, it did not imitate particular elements. The defendants asserted affirmative defences of fair use such as parody, estoppel and statute of limitations. Following an analysis of precedent cases and the Second District judge's comparison of elements present in each work, a "comprehensive non-literal similarity test" was conducted. Subsequently, summary judgement was granted to the plaintiffs with respect to the copy.
The judge's conclusion was as follows:
"Even at first glance, the remarkable stylistic relationship between the posters can be seen, and since style is one of the ingredients of expression, this relationship is significant. The defendants' illustration was rendered in the sketch-like, creative style that has become Steinberg's trademark." [5]
Thus, it held that the proper style amounts to original expression safeguarded by copyright and based the infringement on the similarity of style between the two works. This is how a simple idea became a form of expression with great relevance to protect the artist.
ANDEAN COMMUNITY
Regarding the Andean Community and its member countries (Peru, Ecuador, Colombia, Bolivia), its legislation does not have regulations that protect the artist's style and distinguish it from ideas. However, the Judicial Tribunal of the Andean Community (TJCA) has pointed out the matter in its jurisprudence. Therefore, each member country has its own position to determine whether it is in a copyright infringement case, according to its domestic law.
Decision 351 does not refer to the artist's style or the figure of pastiche. On the other hand, the ECJ has repeatedly indicated that "the protected work must be original, with its own characteristics that make it different; what is protected is the author's individuality, originality and his own style for expressing his ideas". [6] Based on the above, the artist's style becomes a peculiarity of the expression protected by copyright.
CONCLUSION
The artist's own style is protected by copyright despite the difficulty of distinguishing ideas from expressions of ideas in practice.
Such legal protection is evident in the European Union, the United States and the Andean Community. Within the EU, style is slightly safeguarded by exceptions and limitations that allow the imitation of the artist's own style, even if the rule does not expressly provide for any protection. On the other hand, in the case of the USA, we are faced with a much more evident safeguard as there is a concrete application given by American jurisprudence. Finally, the Andean case can be compared with the American case if we look at the jurisprudence of the ECJ, which expressly refers to the protection of the author's own style by copyright. Although Andean legislation does not yet have an exception or limitation that allows the figure of pastiche, the imitation of the artist's style in Andean territory would be an act of infringement of the right of transformation.
REFERENCES
[1] Diego Guzmán, “Protección del estilo del artista”. In: Derecho del Arte. Bogotá: Universidad Externado de Colombia, 2018, p. 58-60.
[2] Definition of “pastiche” according to Real Academia Española. In: https://dle.rae.es/pastiche.
[3] Fredric Jameson, “Postmodernism and consumer society”. In: Postmodern culture. London: Pluto Press, 1985, p. 114.
[4] Antonio Perdices, “El límite del pastiche: Primera aplicaciones de los tribunales en Alemania”. in: Blog CIPI. May 27, 2022. https://blog.cipi.es/blog2-intelectual/item/223-el-limite-del-pastiche-primeras-aplicaciones-de-los-tribunales-en-alemania.
[5] Corte del Distrito Sur de Nueva York, Steinberg v. Columbia Pictures Industries, Inc., 663 F.Supp. 706 (1987), p. 712.
[6] Tribunal de Justicia de la Comunidad Andina, Interpretación Prejudicial, Proceso 20-IP-2007, 18 de abril de 2007.
[7] Corte del Distrito Sur de Nueva York, Steinberg v. Columbia Pictures Industries, Inc., 663 ESupp. 706 (1987), p. 712.
[8] El Confidencial, “Los memes alcanzan rango de ley por indicación de la Unión Europea”. In: https://blogs.elconfidencial.com/espana/el-confidente/2022-01-11/memes-alcanzan-rango-ley-indicacion-union-europea_3356203/.
[9] The Legal Artist, “You can’t copyright style”. February 01, 2016. In: https://www.thelegalartist.com/blog/you-cant-copyright-style.
[10] WIPO, “Aprender del pasado para crear el futuro: Las creaciones artísticas y el derecho de autor”. In: https://www.wipo.int/edocs/pubdocs/es/copyright/935/wipo_pub_935.pdf
Images provided for by the authors