Analysing the relationship between contemporary art and IPR

The contemporary art industry: an overview

Contemporary art refers to art that has been produced in the second half of the 20^th century or in the 21^st century. Typically, contemporary art is culturally diverse and multifaceted. Technological advancements over the years have also impacted the creation of contemporary art as well as the contemporary art industry. Contemporary art may also help reflect on the current issues that plague our society. According to a report titled ‘The Contemporary Art Rush’ by Artprice.com, it is argued that since the start of the 21^st century, the global art space has significantly changed. This is primarily due to the fact that a large number of new millionaire buyers have joined the market, thus leading to a surge in the trade of contemporary art. As of 2018, the global art market was valued at over 67 billion US dollars. In the same year, global art sales have hit an all-time high of 40 million transactions. In the last 20 years, the contemporary art industry has doubled the number of auction houses participating in the sale of artworks. Moreover, the contemporary art domain now accounts for 15% of the global art market.

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IPR and contemporary art

While technological advancements and digitization have opened a plethora of opportunities for young, budding artists to showcase their works on various platforms, it has also negatively impacted the rights that an artist may possess with respect to the artwork. Digital platforms have made it increasingly easy to disseminate unauthorized copies of artworks that are copyright protected. This has also led to other issues such as the creation of unauthorized merchandise, discrediting of original artists as well as plagiarism. Therefore, there needs to be strong IP enforcement across technological platforms to ensure that artworks are not stolen, or duplicated without the original artist’s permission.

Test of substantial similarity to determine copyright infringement for contemporary artworks

The test of substantial similarity is a standard that is used to determine if a party has infringed the rights of an artist. The test of substantial similarity is often used to examine copyright infringement pertaining to contemporary artworks. Primarily, the test roots from recognizing the fact that the exclusive right to create copies of work would be meaningless if copyright infringement was restricted only to making exact, complete duplicates of a work. The substantial similarity standard can be further divided into several tests that have been formulated by courts over the years. The tests include the Total concept and feel test, pattern test, abstraction-filtration-comparison test, and the inverse ratio rule test.

• Total concept and feel test

The origin of the total concept and feel test can be traced back to the case of Roth Greeting Cards v. United Card Co. The total concept and feel test evaluates the subjective examination of outsiders/observers who are supposed to consider if the “total concept and feel of a work” are substantially similar to the infringed work. The total concept and feel test can be further divided into intrinsic and extrinsic tests. As per the intrinsic test, the subjective judgment of an ordinary person with respect to the works is compared in order to analyze if infringement has occurred. Whereas, to conduct an extrinsic test, substantial analysis of the underlying concepts in the work is examined. In the case of BSS Studio Inc. v Kmart Corporation (1999), it was held that a line of Halloween masks produced by Kmart was starkly similar to a line of Halloween masks manufactured by BSS Studio. In order to determine the extent of infringement, the Court utilized the test of “total concept and feel”. The total concept and feel test is also referred to as the ‘lay observers’ test. Thus, as per this test, the benchmark for determining infringement is dependent on an observer’s analysis pertaining to the presence or absence of substantial similarity.

• Sid & Marty Krofft Television Productions Inc. v. McDonald’s Corp.: The genesis of the extrinsic and intrinsic test

Extrinsic and intrinsic tests have been used by several courts to determine the extent of infringement of an artwork. However, most often than not, the concept of extrinsic and intrinsic tests are often confused with each other. However, the difference between the two has been elucidated in the case of Sid & Marty Krofft Television Productions Inc. v. McDonald’s Corp. In this case, it was contended by television producers Sid and Marty Krofft that the H.R Pufnstuf program has been infringed by advertising campaigns carried out by McDonald’s. In order to determine infringement, episodes of H.R Pufnstuf and McDonaldland advertisements were exhibited simultaneously to a jury. Upon concluding the three-week trial, the District Court held that McDonald’s had financially profited through the usage of Krofft’s characters in their commercials. In order to explain the difference between the two tests when it comes to infringement cases pertaining to artworks, Judge James Marshall Carter stated that:

“[The extrinsic test] is extrinsic because it depends not on the responses of the trier of fact, but on specific criteria that can be listed and analyzed. Such criteria include the type of artwork involved, the materials used, the subject matter, and the setting for the subject. Since it is an extrinsic test, analytic dissection and expert testimony are appropriate. Moreover, this question may often be decided as a matter of law. The determination of when there is substantial similarity between the forms of expression is necessarily more subtle and complex. As Judge Hand candidly observed, “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2 Cir. 1960). If there is substantial similarity in ideas, then the trier of fact must decide whether there is substantial similarity in the expressions of the ideas so as to constitute infringement. The test to be applied in determining whether there is substantial similarity in expressions shall be labeled an intrinsic one depending on the response of the ordinary reasonable person. See International Luggage Registry v. Avery Products Corp., supra, 541 F.2d at 831; Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18–19 (9 Cir. 1933). See generally Nimmer § 143.5. It is intrinsic because it does not depend on the type of external criteria and analysis that marks the extrinsic test… Because this is an intrinsic test, analytic dissection and expert testimony are not appropriate.”

• Abstraction-filtration-comparison test

The origin of the abstraction-filtration-comparison test can be traced back to the case of Computer Associates International Inc. v Altai Inc. This test aims to compare the elements of software components at an abstract level. Essentially, the test comprises steps that would help analyze the substantial similarity between elements of computer programs.

In conclusion, while laws concerning IP enforcement with respect to contemporary art are rather inchoate across the world, tests that have been devised over the years (such as the test of substantial similarity) can be applied in order to examine infringement with respect to artworks. However, with the contemporary art industry growing at an expedited rate, as discussed above, amendments in IPR regimes across the world can be expected in order to accommodate the protection of contemporary artworks effectively.

Author: Sanjana, a BBA LLB student of  Symbiosis Law School (Hyderabad), in case of any queries please contact/write back to IP And Legal Filings at  support@ipandlegalfilings.com.