While watching a news report of last week’s unfortunate incident involving another patron collapsing at Heart Attack Grill (‘HAG’, which we blogged about here), we couldn’t help noticing background art work which closely resembled that of Salvador Dali. Then, we discovered this treasure trove, a Facebook album of HAG Art, HAG’s very own takes on famous pieces by Magritte, Warhol, Botticelli, Michelangelo and Rodin, to name a few. It seems it’s not only life imitating art (with customers suffering heart attacks) at Heart Attack Grill. It could be a case of art imitating art. It is interesting to consider the potential IP issues which could arise from this kind of ‘offshoot’ art work.
The pictures are clearly derivative of famous art pieces, though various items in each piece have been replaced by pictures of HAG burgers. In HAG’s version of Salvador Dali’s famous painting ‘The persistence of memory’, the melting watches have been replaced with melting Bypass Burgers. Botticelli’s Venus wears a nurse’s hat, is covering herself with Quadruple Bypass Burgers and standing on a giant meat patty. Rodin’s The Thinker is depicted holding a HAG burger, obviously pre-bite. The healthy apple in Rene Magritte’s ‘The Son of Man’ has been replaced with a Double Bypass Burger. The caption of each picture reads “HAG as viewed by [artist name]”.
Certainly, HAG is not the first, and will not be the last to create such art parodies. Art parodies have popped up featuring Sesame Street characters, Lego and Muppets, (see compilations here and here) not to mention the rife use of art parodies in The Simpsons (compiled here) – heck, The Simpsons parodies everything and anything (although got in a little strife over this FOX News ticker). It’s not only artistic works that are the subjects of such spoof. There’s been a growing dispute over the prevalence of parody Hitler ‘Downfall’ videos, but our favourite find of the day would have to be this Sesame Street clip of Grover parodying the Old Spice ad (see our original post on the Old Spice ad here).
In Australia, the Copyright Act 1968 (Cth) (‘Act’) provides that a person who creates an original artistic work holds copyright in that work, that is, the right to:
reproduce the work in a material form (and note, a reference to a reproduction of a work includes a reproduction of a substantial part of the work);
publish the work; or
communicate the work to the public (section 31(1)(b)).
A person will infringe copyright if they do any of the acts that are comprised in someone else’s copyright.
It could be argued that as the HAG Art includes HAG burgers and nurse uniforms, they are not in fact reproductions of original works, but rather original, if derivative works, protected by copyright themselves. However, while there is copyright in a derivative work, that does not derogate from copyright in the original – so it may still be infringement to use substantial parts of the original in a derivative work.
There is also an exception to copyright infringement for a fair dealing with an artistic work if it is for the purpose of parody or satire (s 41A of the Act). “Parody” and “satire” are not defined in the Act, but HAG’s adaptations of the original works may fall under this exception, if the use is seen as “fair”, having regard to the context of the HAG Art and how much of each original work is being used. For more on parody and satire in Australian copyright law, see this article by Nicolas Suzor.*
If the use fell within the parody and satire exception, aggrieved artists could attempt to rely on their moral rights (also set out in the Act), if they felt that:
they were not given appropriate attribution (the “right of attribution) – although note the caption of each picture may defeat this claim; or
if they felt that their original work was subject to derogatory treatment – that is, their original work was distorted or otherwise materially altered in a way that was prejudicial to their honour or reputation (the “right of integrity”).
In January this year, the Federal Magistrates’ Court of Australia found that the right of integrity of American rapper ‘Pitbull’ (also known as Mr 305, and his actual name, Armando Perez) had been infringed by Australian DJ, DJ Suave (Jaime Fernandez).** Pitbull provided Fernandez with an audio drop to the effect of “Mr 305 and I am putting it down with DJ Suave”, to promote a tour which later fell through. Fernandez removed some of the lyrics at the start of Pitbull’s song Bon, Bon, replaced them with the audio drop then streamed the distortion on his website, and played it in nightclubs. The FMCA held that due to the importance of associations with other artists in the rap/hip-hop genre, the distortion created a false association that was prejudicial to Pitbull’s honour and reputation, and that therefore Fernandez had subjected Pitbull’s song Bon, Bon, to derogatory treatment. The award for moral rights infringement was $10,000.
It seems a steep hurdle to suggest that HAG’s art work is somehow prejudicial to the original artists’ honour and reputation.
Further, even moral rights are subject to a “reasonableness” test, where a court will look to industry practice and other contextual factors in making its assessment. Because HAG’s art is likely to be considered a parody, and many of these original art works have been parodied in other scenarios, it may be that a Court would find HAG’s art quite ‘reasonable’.
The relationship between the parody and satire exception and moral rights is yet to be determined through the courts, but is an area in which we are staying tuned for developments. What are your thoughts? Do you have any favourite art parodies? Tell us on Twitter @ipwhiteboard.
[Note: We were amused to discover that HAG’s website has a live scroll Twitter feed for any Twitter mentions of ‘Heart Attack Grill’ (including our IP Whiteboard tweet). Keep that in mind if you want your very own 27 seconds of HAG fame!]
* Suzor, Nicolas. ‘Where the bloody hell does parody fit in Australian copyright law?’ (2008) 13 Media and Arts Law Review 218.
** In Perez & Ors v Fernandez  FMCA 2 (10 February 2012).