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When I was at university, a friend once asked to borrow one of my essays. I agreed confidant in the knowledge that she would never use it for a dishonourable purpose. She changed the name on the top to hers and handed it in. I wouldn’t have been so angry, had she not got a higher mark than I had.
I knew that this act of intellectual treachery was blatant plagiarism. The Faculty had made it quite clear to us that to use anybody’s work was plagiarism and was likely to be met with expulsion (if not a higher mark). We were even told that it was plagiarism to use you own words to express somebody else’s idea, if you did not state your source. Therefore, even if my friend had entirely re-written my essay to express my thoughts in her own style. She would have been just as culpable.
Given this experience I am totally sympathetic to illustrators who recognise their style or concepts in the work of a rival and want to take legal action. However, despite the fact that plagiarism is a familiar and understood concept, as a lawyer I have to inform my clients that, in the eyes of the law, it does not exist.
The Oxford English Dictionary defines plagiarism as "the wrongful appropriation or purloining and publication as one’s own, of the ideas, or the expression of the ideas… of another". However, Plagiarism is neither a crime nor a civil,wrong. In fact, to my knowledge, the word does not even occur in any current statute. However, before you rush out and rip-off your favourite paintings, I should say that’s it’s not necessarily ok to do so.
There are several strands of law which together act to prevent one artist profiting from the work of another. The first and most often used is copyright.
If you copy the whole of another person’s work, you will probably infringe their copyright. You will probably infringe their copyright if you copy a substantial part of another’s work. What is substantial is determined by the quality of the portion used, not just the quantity. In other words, if you copy the most important part of a work, it will be substantial even if it’s only a small percentage of the whole.
However, infringement of a copyright cannot be totally equated to plagiarism since plagiarism can be taking an idea, whereas copyright is not concerned with ideas. If you merely copy another’s style or the notion behind an illustration, this is unlikely to be a copyright infringement.
The other tool in the lawyer’s chest is passing off, despite not sounding very official, it is a legally recognised offence. It occurs when a person (or company) trades off the reputation of another by deceiving the public as to the origin of the work.
For example, a supermarket was recently prevented from selling chocolate biscuits called Puffin as the Court held that consumers were likely to be confused by their packaging into thinking they were buying the well known Penguin brand.
It is easy to see how this reasoning could be applied to illustrators. Many artists have an easily recognisable style and it is conceivable that people might be mislead into thinking their favourite artist was behind a work and buy it for this reason. However, the criteria for proving the offence are quite stringent. In order to bring an action for passing off, the Claimant must prove three things:
1. That he/she has goodwill (ie would then public recognise his/her work and purchase it because it is his /hers)
2. That the Defendant has misrepresented his/her work so that people would confuse it with the Claimant’s.
3. That he/she has suffered damage as a result.
These criteria are fairly difficult to establish in practice especially as the Claimant has to show that people know his work and that the Defendant deliberately tried to dupe the public.
Of course, if the deception is extremely serious, the police and the Crown Prosecution Service might have more to say on the matter. If, for example, an artist painted an exact copy of a well known work and attempted to auction it as the genuine article, the potential infringement of copyright would be a trivial matter compared with a charge of fraud.
Fortunately, this situation is less common. In most circumstances copyright and passing off form an effective weapon against the worst kinds of plagiarism, without stifling the evolution of ideas and artistic trends. After all, the unattributed influence of those who have gone before is evident in practically every piece of art. Plagiarism may be a taboo in academia, but in art some might say it is almost essential.
Robert Lands – Finer Stephens Innocent Solicitors
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