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Decision raises issue of idea, expression in conceptual artwork

John Simpson

A recent Ontario Superior Court of Justice decision dismissing a Toronto artist’s copyright infringement claim on his most notable work – a series of paintings featuring white crumpled paper in still life form – is not surprising, given evidence of independent creation, says Toronto IP lawyer John Simpson.

In Rains v. Molea, artist Malcolm Rains claimed Lucian Bogdan Molea, a Romania-born artist who immigrated to Canada in 1999, copied his idea to incorporate crumpled paper into his artwork, the decision reads.

Rains’ “most important and memorable work,” the judgment says, is found in his Classical Series, which emcompasses more than 200 works and features white crumpled paper in still life form on an undefined base against a dark background. He began the series in 1991.

In 2000, the decision says, Molea began painting realistic still life works featuring crumpled paper with an intent “to render and analyze simple material in a way that creates drama through a process that is random, different, and explores light, shadow, and volume.”

Justice Victoria R. Chiappetta dismissed Rains’ infringement claim, stating, “This case involves two artists who had the same (and not unique) idea to paint crumpled paper in a realistic way using conventional painting techniques. Their motivations are different. Their processes are different. Their resultant expressions are different.

“If any of Molea’s 17 comparison works were substantial copies or colourable imitations of Rains’ comparable images, Rains would be successful in his claim of copyright infringement. However, simply because Rains expressed his idea before Molea and found commercial success and critical acclaim for doing so, does not mean that Molea or any other painter is forever prohibited from independently creating an expression of crumpled paper in still life form.”

Simpson says in reaching the decision, Chiappetta had to deal with some tricky issues in copyright law.

“The judge had to consider: Where do you draw the line between idea and expression in conceptual works? When is a ‘series’ of works a compilation such that copyright protects the whole as well as the parts? Can copyright exist in a work that is randomly generated? Is a likelihood of confusion as to who created the work (the test for trademark infringement) relevant in determining copyright infringement? I think the judge dealt with these issues really well and that we’ll see the case cited in other contexts in the future, like in software cases for example,” he says.

Looking forward, Simpson says the case is likely to provide a useful example of how to apply the idea vs. expression distinction to a difficult set of facts.

“It’s not hard to make the distinction in the abstract. But it can be very difficult to make it in the context of conceptual art, computer programming and things like reality TV shows,” he says.

“In this case, the plaintiff and the defendant had both produced a series of paintings of randomly crumpled paper depicted in a realistic way, using the same colours and techniques such that gallery goers thought they were by the same artist. The court had to look at each painting carefully and decide whether the artists were merely expressing the same idea or whether their expressions of that idea were substantially the same.”

In her decision, Chiappetta notes that the artists’ ideas were “not unique,” – but Simpson says in the end, the originality of an idea will not greatly affect a case like this.

“All that should matter is whether the plaintiff’s expression of that idea was sufficiently original for copyright to exist in the work (which is a very low bar),” he says. “The judge did consider evidence that artists have been painting crumpled paper for hundreds of years – that the idea was therefore old. But I think that evidence was helpful in drawing the line between idea and expression in this case, between what the plaintiff could claim as his own expression of the idea and the idea itself. An old, and often tried idea, will be harder to express in an original and protectable way.”

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