Artists tend to be unique in the approaches they take to creating their art. This is part of the reason why the work of talented artists appears so distinct. Their style defines their work. If they are painters, for instance, they may apply paint to a canvas by a method of their own invention that produces a particular, original result, or they may utilise an unusual combination of themes, moods, and colour schemes in their work. Owing to the creativity and originality of art style, shouldn't it be copyrighted under intellectual property rights?
Unfortunately, the answer is no. In Australia, when you create art it is automatically protected under the copyright category of intellectual property. Copyright protects art existing in any material form from films to sculptures, and everything in between. It does not protect ideas or thoughts about creating that art, unless those ideas have been recorded in drawn sketches, written outlines, digital documents, or other physical records. Style of art falls along the same lines of not constituting anything tangible and it too cannot be copyrighted, nor can ideas, particulars, or the creative techniques that might have gone into its invention. However, if the style or technique of another artist matches your own such that people have difficulty distinguishing your art from the other party's, you might find that you can take legal action through the following courses:
- The passing off law
- Consumer protection legislation
- Trade practises legislation
What is the passing off law?
The passing off law protects intellectual property from being imitated or passed off as a product that was created by or is associated with a source other than that which actually created the product. In simpler terms, if someone deliberately or mistakenly produces something similar to another's product and others perceive it to be associated with the original creator, that someone may be guilty of misrepresentation. An example of this occurring with art style could be more complex. If, for instance, an artist's (artist A) drawings prominently feature a unique red and black colour scheme and the work of another artist (artist B), which features the same colour scheme, increases in popularity or sells more as a result of buyers believing the art was actually drawn by or was connected to artist A, artist A may be able to protect their work with the law of passing off. It is important to note that intent on the part of the party misrepresenting the product is not required for a case to be made.
How is art style protected under consumer protection and trade practises legislation?
If someone else's art looks like yours to the point where it may mislead or deceive, you may be protected under Australian Consumer Law (ACL). Penalties for such an infringement can be as high as $1.1 million for corporations and $220,000 for individuals. Consider getting in touch with legal counsel for help with navigating the complexities of consumer protection and trade practises legislation if you feel your art has been misrepresented.
Can art style be trademarked or patented?
Art style cannot be trademarked under intellectual property rights because it does not meet the requirement of constituting a product or a service, nor can it be patented because it falls under the category of mental processes.
How to protect your art
Although you cannot, in all scenarios, prevent others from imitating your style, you can still take steps to ensure your art's protection. Applying the copyright notice to your work is one option that might help discourage its reproduction (although it is not necessary).
Under copyright others cannot reproduce your art (this includes photographing, filming, or copying in any way) nor can they publish, broadcast, or sell it in any medium without your permission. Although your art automatically falls under these protections the moment it comes into physical existence under the Copyright Act, you might like to register it in the US or in other countries where it may not be protected.
Because there is no official way to register for copyright in Australia you may also be concerned about how long your art is protected. Under the 2005 amendment of the Copyright Act, copyright for your art lasts the life of the author plus 70 years.
If you would like more information about protecting your intellectual property, or if you wish to begin the complex process of filing for a patent or a copyright, contact one of our professional team members and we can guide you through the process.