This raised a classic copyright question: where does free inspiration end and the adaptation of a protected work begin?
The work is protected, but the style is free. Copyright protects concrete forms of expression and the creative selection and arrangement of elements. Ideas, concepts, techniques and styles remain free.
The characteristics of an artistic movement may therefore be used. Examples include the bold colors and seriality of Pop Art, the geometric forms of the Bauhaus and the technical, mechanical appearance of kinetic art.
Gears, metal rods, pipes, scrap parts, movement, sounds and playfully purposeless mechanisms, taken by themselves, belong to no one. These design elements may be used in new works.
This also applies when such a design immediately recalls a particular artist. Having created and influenced a distinctive style does not change the rules of copyright.
If a particular work remains recognizable behind a stylistic reference, the elements taken over are decisive.
The key question is whether concrete, individual elements of a protected work have been taken over. This may involve a particular combination of forms, colors, materials, proportions, sequences of movement or other design elements.
If the individual character of the work used remains recognizable, the new design may be an adaptation. The rights holders’ consent is then generally required. This also applies when the new object serves a different purpose. For example, a work of art may be transferred to a ventilation grille, a piece of furniture or an advertising medium.
If, by contrast, the design displays only a general technical and mechanical aesthetic, this indicates free inspiration. The distance from the original work increases, in particular, when no characteristic composition, special forms or distinctive details are taken over.
In a case such as this, the model and the design must therefore be compared in detail:
- Which elements come from a particular work?
- Which elements result from the technical function?
- Which design elements are generally known?
- What overall impression is created?
- Does a particular work remain recognizable in its individual features?
May the artist’s name be mentioned? A source of inspiration may be identified. Saying that a design is “inspired by Jean Tinguely” or draws on the aesthetics of kinetic machine art does not infringe copyright. Art may consist precisely in referring explicitly or implicitly to earlier works and styles. The reference must not, however, suggest any collaboration, consent or authorization. Descriptions such as “Tinguely ventilation grille” would be misleading if the artist or his successors in title were not involved in the project. Depending on the use, personality rights, name rights, trademark law or unfair competition law may also be relevant.
What practical recommendations help keep copyright issues under control for objects such as this ventilation grille?
- Increase the distance: design the forms, arrangement, materials, colors and overall impression as independently as possible.
- Compare the original and the design: record the elements taken over and the differences in writing.
- Refine the description: refer to an artistic style or source of inspiration. Do not suggest authorization or participation.
- Document the assessment: in a borderline case, obtain and record a copyright assessment.
- Consult the rights holders: if a particular work remains clearly recognizable, prior clarification with the artist, the heirs or the competent collecting society is advisable.
The most important rule remains: a style may inspire. The more strongly the new object takes over the individual elements of a particular work, the more likely consent is required. In short: inspiration yes, appropriation no.