Infringed or infringer? That’s the question

Infringed or infringer? That’s the question

Joshua Kaufman

When does a knockoff work of art constitute copyright infringement? The answer is not always clear.

I’m using the term “knockoff” to describe a work that is clearly inspired by another artist’s work–a work that approaches the line of infringement, but doesn’t cross it.

Art publishers are always searching for the next breakthrough artist or style. If they are fortunate enough to find something new, they usually want to get it to the marketplace quickly and guard it as closely as possible.

Noticing the success of their competitors’ new ace in the hole, other art publishers might offer their own customers something similar. Often, they will search for other artists with similar styles or instruct more versatile artists to create similar works.

No one wants to become a copyright infringer, but the difference between a knockoff and infringement is not always clear. The standard, according to copyright law, is the unbelievably ambiguous expression “substantial similarity.” In hundreds of court cases, judges have labored to define what, exactly, this means.

A Closer Look

Let’s examine some legal theories pertaining to copyright infringement more closely. The first thing to do is look at the term “Substantial Similarity.” Since the first word is “substantial,” slight and trivial similarities do not apply to infringement. The second word, “similarity,” means the works don’t have to be identical to constitute infringement, they just have to be similar.

A work or art that has distinguishable variations from a similar work can still be considered infringement. It’s common for those who are charged with copyright infringement to bombard their accusers with detailed lists of their works’ distinguishing characteristics and differences. But to establish “Substantial Similarity,” one must focus on the overall similarity of a work of art, not the differences between them.

Nimmer on Copyright, the leading legal treatise in the copyright field, has its own terminology for analyzing similarities between works of art–“Comprehensive Non-Literal Similarity” and “Fragmented Literal Similarity” Comprehensive Non-Literal Similarity is, according to Nimmer, “a similarity not just as to a particular line or paragraph or other minor segment, but where the fundamental essence or structure of one work is duplicated in another….”

But this concept is tempered by one of the basic premises of copyright law–that expressions of ideas are protected, not the ideas themselves. Thus, if the similarity between works exists solely in one artist’s duplication of another artists’s idea, the two works will not be deemed substantially similar, even if two artists’ ideas are identical to one another.

Fragmented Literal Similarity occurs when one artist’s work has similarities to certain aspects of another artist’s work–but not the entire work. Even though specific dements may appear to have been copied, the works, overall, are very different from one another. At what point does the copying become substantial enough to border on infringement? Again, there are no clear answers.

One must also determine the value of these copied dements to the secondary painting. How important are they to the “copied” work? The more important they are, the more likely they will be considered substantially similar.

The Decision Makers

So who decides whether or not two works of art are substantially similar? Under the law, this is considered a question of fact, thus, it would be up to a jury to decide. In cases in which it is clear that two works are not at all similar (or virtually identical) a judge may rule on the case early. If a case does go to trial, it can be a long and frustrating process.

The traditional test a judge or jury uses during an infringement case is often called the “audience test.” This means that if an ordinary person–“without the aid or suggestion or critical analysis by others, would feel that infringement had occurred”–then an infringement has occurred.

While the audience test uses spontaneous reaction instead of close scrutiny, the jury must still determine that the artist has infringed on the “expression of an idea,” not the idea itself. Even if a person thinks two works of art are very similar to each other, if the similarities are based solely on the underlying concept of the painting, infringement has not occurred.

While this test is not without criticism, it is the most commonly applied test when it comes to copyright infringements of the visual arts. But there are others.

In New York, the court has established what is known as the “Aranstein test.” Using this test, the defendant is first asked whether he or she copied the plaintiff’s work. If the copying has occurred, the next question is whether it constitutes an improper appropriation.

After looking at both works in their entirety, the jury decides if, based on the overall look of the paintings, it is clear to them that the works have been copied, the court applies the audience test.

California courts have established what is known as the “Krofft test.” With this test, a jury examines whether the general ideas of two works of art are substantially similar. The court calls this first test the “extrinsic test” It is not based on gut instinct but specific criteria that can be objectively determined and analyzed, including the subject matter, setting and the types of materials used to create the work.

If these elements are similar, the the next question is whether there are enough general similarities in the expressions of the ideas to constitute infringement.

Trade Dress

The courts have universally determined that an artist’s style is not protected. But trade dress is an area of law that may broaden the net cast by artistic protection.

Trade dress is basically a product’s total image and overall appearance. It is defined by a product’s composition and design, including shape, size, color, texture and graphics. Since a trade dress claim for artwork would obviously deal with the product itself and not the packaging, a plaintiff would need to prove that the work of art has acquired a secondary meaning.

A trade dress claim can be made regarding the similarity between the packaging of two works of art or the similarity between the works of art themselves.

To establish a trade dress claim, an artwork’s “style” (and I use the word very loosely) must be clearly and uniquely identified with one artist. So if a claim for trade dress is made it must be made by an artist whose style is unique and very recognizable–whose overall style is so well known and so recognized that it has acquired a “secondary meaning.”

In the past 10 years there has only been one reported case in which trade dress was applied to the work of an artist. In that case, it was never tried so there has never been a definitive ruling on whether or not trade dress applies to art.

Resting the Case

So what’s the difference between a knockoff and an infringement? It’s all in the eye of the beholder, and the beholder is usually either a judge or a jury. In most cases where my clients express their concerns that their works are being infringed upon, we do an analysis based both on copyright and trade dress. We look at the works; we look at how much of the copying is the overall idea; we look at how much of the similarity between the two works is unprotected idea versus actual expression; we look to see if there are specific elements that have been copied; we look to see how unique the artists “style” is, and basically go on a gut reaction based on reviewing hundreds and hundreds of these types of cases. Subjective? Certainly. But then why can’t practicing law be an art form as well.

Joshua Kaufman will be speaking on the topic of Copyright Infringement on Feb. 27 at 2:30 p.m. during International Artexpo New York at the Jacob K. Javits Convention Center. A more comprehensive version of this column can be found at

Joshua Kaufman is a partner in the law firm of Venable, LLP Attorneys at Law. While based in Washington, D.C., his practice is national in scope. He is one of the country’s foremost attorneys in the field of art and licensing law. He has published more than 200 articles on various topics in the field. He is also an adjunct professor of law at American University Law School. Many of his articles can be read and downloaded from,

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