IS THE WHOLE OF A PAINTING THE SUM OF ITS PARTS?
While every painting, poem, news story, play or movie is at some level made up of entirely unoriginal elements, it is combining these elements into a final product that gives rise to uniqueness and originality. Arguably, approaching copyright by dissecting a work and saying it’s a collection of unoriginal elements creates challenges for creators who want to know the limits of their copyright protection. But, as the case of Rains v. Molea reveals, the line between dissection, comparison and impression can become a moving target.
Over some 22 years beginning in 1991, Malcolm Rains created some 200 large oil paintings in his “Classical Series.” All the works featured white crumpled paper in still life form on an undefined base against a dark background. Rains claimed that Lucian Molea infringed his copyright in the series. Ontario Superior Court Justice Victoria Chiappetta dismissed the claim, reasoning that while each image in the series was original and attracted copyright on its own, no infringement had occurred. She also ruled that copyright did not exist in the series as a whole.
Molea is a Romanian-born artist who immigrated to Canada in 1999. Before that, Molea’s paintings were expressionistic and emphasized the human form, floating structures and geometrical features. They did not feature crumpled paper in still life form. But, in 2000, Molea began painting still life works featuring crumpled paper. “Molea’s interest in painting crumpled paper as a featured character stems from a previous pre-occupation of creating a virtual reality,” Chiappetta noted. “He intends 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.”
Chiappetta quickly reached the conclusion that each of Rains’ paintings was original. Each image originated from Rains and was not copied from another work, and every image was the product of Rains’ skill and judgment. “Rains’ skill and judgment employed to create the final images are more than trivial and meet the originality test set out above,” Chiappetta concluded.
However, Molea’s work did not violate the copyright in the individual paintings as they were not “substantially similar” to Rains’ works. A comparison of 17 alleged points of similarity revealed that they were “conventional tropes or artistic devices common among painters” that were not unique to Rains or original and therefore they did not enjoy copyright protection. “Because the common techniques are not capable of copyright protection,” Chiappetta ruled, “the plaintiff cannot rely on these similarities to establish copyright infringement.”
As for the Series as a whole, however, Chiappetta did rule that it was not a “compilation” that constituted an “artistic work” under the Copyright Act.
“There is no evidence that Rains exercised skill and judgment to select a crumpled paper image and arrange it with others in the Classical Series such that copyright subsists in the arrangement of the series itself,” Chiappetta wrote. In other words, the “Classical Series” was not an independent work of “carefully selected” paintings, but a common label for the paintings — a label that existed long before the series’ creation. “There is no originality in the label itself; there is no skillful organizational aspect of the Classical Series that warrants protection for the series as a whole,” Chiappetta wrote.
FIGHTING ONLINE DEFAMATION
In April 2013, former Toronto Maple Leafs general manager Brian Burke sued 18 anonymous online users in the British Columbia Supreme Court. He alleged that they falsely accused him of having an extra-marital affair. The lawsuit highlights the legal and practical difficulties facing online defamation victims, including celebrities in the sports and entertainment field.
To begin with, the law surrounding online defamation remains uncertain. Ontario courts, for example, have yet to determine conclusively how long an individual can wait before the time for filing a lawsuit runs out. Generally speaking, Ontario law requires victims to serve notice of the libel within six weeks of its publication, and to sue within three months. Whether or not this relatively brief period applies to online defamation is still unclear.
That uncertainty may well have influenced Burke’s decision to sue in BC, although he had a home in Toronto. BC has a two-year limitation for defamation. And although Burke worked for a US hockey team, the Anaheim Ducks, at the time, he also chose not to sue in the US, where online users typically have greater protection from suit.
Above all, Mr. Burke has a tortuous route to follow. He must get a court ordering directing Web hosts and ISPs to disclose identities, an expensive and time-consuming endeavor that’s not always fruitful. But even getting a court order may not do the trick. If the defendants were technologically sophisticated, they may have covered their tracks, or they have may have just been lucky, and used a shared computer and public Wi-Fi services. As well, there is a proliferation of websites and Internet cafés that allow individuals to communicate anonymously.
Although Internet tools for cracking anonymity are plentiful, finding and using just the right ones can be very time-consuming without the assistance of a pricey expert. Some plaintiffs have gone so far as to hire linguistic analysts to search for similarly-worded postings on non-anonymous sites.