|Who are you calling a copycat?|
While the trial court agreed with the plaitiff on both counts, the Court of Appeal was more nuanced in its approach, finding in favour of the plaintiff on grounds of parasitism but rejecting the claims in copyright infiringement.
While in no way disputing the originality of the works created by Henriksen (and hence the fact that copyright subsisted therein), the Court found that the mere "impression of proximity" between the two artists' works did not constitute a reproduction within the meaning of copyright law.
On the other hand, the Court felt that the proximity between the two artists' workproduct could not have been the result of a common inspiration but rather was designed to generate a risk of assimilation or association between the two oeuvres. It found that Henriksen had created something of economic value and that the defendant's work's proximity therewith was of a nature to give her an unwarranted advantage, i.e. that the various conditions of a parastical conduct claim under French law were satisfied.
Finally, the Court awarded Henriksen (and his gallery) damages in the amount of €5,000.
The ruling is noteworthy because it goes into some depth of a painting-by-painting analysis of the various similarities and differences between the works and the legal relevance (or irrelevance) thereof. It also serves as a useful reminder that copyright (and infringement thereof) need not be the be-all and end-all of all copy-related claims.
The decision is Paris Court of Appeal, Pole 5, 1st Chamber 27 February 2013 RG 12/01050 (I would be pleased to send a copy to readers upon request).