Creations: is "inspiration" legal?

Written by Claire Denoual and Claire Leonelli - Avocats à la Cour

Published on 23.04.2019. Paperjam

The Renaissance was inspired by Antiquity, Napoleon by Ancient Egypt, Miro by Flemish painters, Picasso by African art... The feeling of déjà-vu in front of a creation is common in all fields (art, fashion, film, music, advertising, etc.). But is it always legal and without risk?

"Everything is an eternal beginning". But is it legal to take inspiration from someone else's work? Where is the border with copyright infringement?

When it comes to copyright, it is common to hear that "ideas are free". What is protected by copyright is not the idea behind a work but the original expression of that idea, regardless of its merit, purpose or nature (photo, drawing, painting, sculpture, theater, film, music, fashion, design, architecture, etc.). Thus, the idea of wrapping a monument in fabric - however original - is not in itself copyrightable. However, the wrapping of the Pont-neuf in Paris is. The Christo collective, having realized this performance in 1985, has the right to forbid - or to authorize - the diffusion of postcards reproducing this realization. But it cannot prevent a third party from covering the Adolphe Bridge in Luxembourg with canvas.

Copying is not playing!

Where, then, does one draw the line between simple inspiration, i.e. the use of an idea or technique that cannot be appropriated by copyright, and copyright infringement, which is subject to sanctions, including criminal sanctions?

What is clear is that the question only arises if the work in question is still protected by copyright and has not fallen into the public domain. Copyright has indeed a limited life span - or rather protection -, generally up to 70 years after the death of the author.

What is also clear is that integrating all or part of a pre-existing work that is still protected into a new work, even by transforming it, requires the prior consent of its author, and except for specific exceptions (such as parody, for example), disregarding this consent constitutes an infringement.

But between these two extremes, where do we stand?

The similarities, beyond the differences

Copyright infringement can also exist in the case of imitation of an original work. In this case, it will be assessed in relation to the characteristic and original elements constituting the primary work, and not in relation to the differences between the works.

It will be up to the judges to make a comparison of the works in question by focusing on the original elements of the prior work, as demonstrated by the author (e.g., for a photograph, the models and the pose chosen by the photographer are essential elements). If, under the terms of this analysis, the judges find that the similarities between the works are minimal and that a distinct overall impression emerges between them, then the infringement will not be characterized.

The possible good faith of the "infringer" is irrelevant: it can be sanctioned even if it did not wish or was not aware of violating the author's rights. It will have to try to bring the difficult proof of a common inspiration and a fortuitous meeting.

Contrary to popular belief, there is no precise standard in this matter. Thus, in musical matters, infringement does not require a minimum number of seconds to be constituted. It is all a question of individual cases.

It is therefore difficult to make a clear distinction between what could be an illegal infringement and, on the contrary, what is a simple and not reprehensible inspiration of previous works or the mere revival of a genre.

Let's take a first example to illustrate this point: copying a painting by Pablo Picasso is an infringement; on the other hand, being inspired by the artistic movement of cubism (i.e. the common artistic background) to create a painting including creative choices and a layout reflecting the author's own personality is completely admissible.

Counter-example:

In this case, which gave rise to a 2013 ruling by the Tribunal de grande instance de Paris, the Court considered that the essential elements that make Marc Lamey's photograph original, namely "the very tight framing on the model's face, the particular lighting used and the very specific setting of "an impassive female face with a fixed gaze, a pale complexion and very red lips, half immersed in colored water", were reproduced in the subsequent photograph, as published on the cover of the magazine, and that this constituted an infringement of the first photograph.

Thus, taking inspiration is not necessarily an act of infringement, but it can be if the original elements of the first work are reproduced in the second one.

Caution is therefore required in this matter!