Legal possibilities for copying art's style for advertising?

July 21, 2008 1:20 PM

In Alberta, does my business have the right to use/copy the "style" of a piece of artwork that we already paid to use when commissioning new artwork from a different artist?

My retail shop's front awning features a large, prominent mural-type image. When it was originally installed, a local artist was paid to produce the image but my shop doesn't own the image - we've used it a very small number of times for stationery and advertising purposes, but each time we want to use the image in a new form we have to pay a licensing fee.

The original artist is talented but he's personally difficult for us to work with, and we can't even come close to affording his services for all the web & print work we have in mind for an upcoming campaign. I've approached other artists who are able to work within our budget, but I'm concerned about the legality of asking for artwork that deliberately and closely mimics the style of the existing store-front artwork.

I have no intention of completely snubbing the original artist on this matter, but his confrontational and profit-hungry nature mean I have to be sure of my footing before he catches wind of this.

For reference: The original image is a mural with the theme of "people enjoying food" - it has a few stylized painted people standing around with foods and foody images scattered artfully throughout the background and foreground. I'm not interested in copying the existing image, but I would like artwork that features painted people and food of a distinctly similar style so as to provide a continuity in the shop's image. The original artist is not well-known (to my knowledge) and the style isn't ground-breaking-ly unique or anything, so I doubt he could claim we were trading on his name or trademark, but since we don't own the original image, I'm afraid it could be inappropriate for some other reason.

Any advice, experience or (inexpensive) legal resources you could offer would be terrific. If it does come down to "Call a lawyer and pay him to research this", then I can arrange that.

posted by anonymous to law & government (3 comments total)

It's not a legal explanation, but you commissioned an artist to paint a mural for your store, and it's reasonable to expect that any work of other commissioned artists would extend the look and feel to present a harmonious result.

I suppose it depends partially on how distinct the art style is. A drawing that is similar to the stereotypical "pizza guy on the box" commissioned for your own pizza place wouldn't ruffle any feathers. Something distinctly "South Park" or "Simpsons" might be a bit more identifiable.

In the future though, I'd negotiate to be allowed unlimited access to the usage rights of your images. It's kind of silly that you're not allowed to reproduce images of your store.
posted by explosion at 1:47 PM on July 21, 2008

IANAIPL (I am not an IP lawyer), but:

Infringement is not the solution, particularly when there's so long a paper trail of your acknowledging the primacy of his copyright over your trademark rights. (Without your history of licensing you might have had some interesting IP arguments to make.)

Part A of a solution: resolve to repaint your awning. As painful as it may be partially to rebrand, you are never going to dig yourself out of the hole of relying upon someone else's intellectual property as the heart of your trade dress. Untenable financially for you now, as you're learning, and could be a disaster in the long run (when you have eight or ten stores and a multi-million buyout founders because you fail the buyer's IP audit).

Part B of solution: having thus resolved, approach difficult artist. Explain that is untenable for you to need to continually license your own trade dress. Ask for his best reasonable price to buy out his copyright (some fraction or small multiple of the cost to repaint, I'd assume). If he refuses to negotiate, remind him that this assures he will get zero new money -- not the buyout dollars, and no future license dollars, and he loses the promotional benefit he enjoys every time a potential client walks past your store or sees some of your advertising.
posted by MattD at 5:40 PM on July 21, 2008

By the way, you still need at least a quick consultation with a lawyer to make sure that the agreement with the repaint artist, or the buyout agreement with the original artist, effectively transfers the copyright to you. Artists and photographers have their own standard form agreements which they like but which can be tricky in terms of retaining some economic rights (or, worse, "moral" rights) in their work.
posted by MattD at 5:43 PM on July 21, 2008