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Between thought and expression


The Ontario Superior Court’s recent decision in Rains v. Molea about allegations of copyright infringement in a series of paintings of crumpled paper, is a fun read for an IP lawyer. And while the context is conceptual art the decision is likely to be cited in other contexts in the future – like cases dealing with copyright in software and reality TV shows.  

The Court had to deal with some tricky issues like: Where do you draw the line between idea and expression in conceptual works? When is a “series” of works a compilation such that copyright protects the whole as well as the parts? Can copyright exist in a work that is randomly generated? Is a likelihood of confusion as to who created the work (the test for trade-mark infringement) relevant in determining copyright infringement?

The decision is a good example of how to apply the idea vs. expression distinction to a difficult set of facts. Copyright does not protect ideas, only expressions of ideas. It’s not hard to make this distinction in the abstract. But it can be very difficult to make it in practice. In this case, the plaintiff and the defendant had both produced a series of paintings of randomly crumpled paper depicted in a realistic way, using the same colours and techniques such that gallery goers thought they were by the same artist. The Court had to look at each painting carefully and decide whether the artists were merely expressing the same idea (no infringement) or whether their expressions of that idea were substantially the same (infringement).

An interesting aspect of the decision was how the judge considered evidence relating to the originality of the idea itself – that is, realistic looking paintings of crumpled paper.  The judge found that artists have been painting crumpled paper for hundreds of years and that the idea was therefore an old one. It is arguable that this should not have mattered since all that matters for copyright to exist in a work (and to be capable of being infringed) is that the plaintiff’s expression of that idea is original. But as this case shows, evidence that an idea itself is an old one can be helpful in drawing the line between idea and expression, between what the plaintiff can claim as his own expression of the idea and the idea itself. An old and often tried idea will be harder to express in an original and protectable way.

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