Milk-crate-gate, or, is there really no such thing as an original idea?

It’s not often that a milk crate makes national news headlines, but social media is now abuzz over claims of possible copyright infringement involving this ordinarily innocuous object.

Australian artist Jarrad Kennedy has raised a cyber-eyebrow over the similarities between his 2005 McLelland Sculpture Prize entry and Hany Armanious’ Pavillion, a 13.7 metre high piece of public art soon to be installed in Sydney’s Belmore Park.  Kennedy posted the following comparison of the two works on his personal Facebook page on Tuesday:

Kennedy facebook post

“I was shocked to say the least. Art may be open to interpretation, but [precedents] dictate that the artwork is in breach of copyright. The artist will receive notice tomorrow,” Kennedy stated in the post.

Under the Copyright Act 1968 (Cth) (“Act”), a sculpture is a form of “artistic work”. Generally speaking, copyright subsists under the Act in an original artistic work and the author of that work (usually the artist or sculptor) has the exclusive right to reproduce his or her work in a material form, to publish the work and to communicate the work to the public.  Copyright in an artistic work is breached if another person exercises these exclusive rights without permission.

There are two questions:  First, is Kennedy’s work protected by copyright?  Second, has Armanious reproduced Kennedy’s work?

“Sculpture” is defined under the Act as “a cast or model made for purposes of sculpture”. For the purposes of copyright law generally, the key principle is that sculpture is a branch of the visual arts concerned with the creation of three-dimensional forms (Lincoln Industries Ltd v Wham-O Manufacturing Co [1984] 1 NZLR 641). Although copyright does not traditionally subsist in “functional objects”, given its scale and artistic purpose, there is little doubt that Kennedy’s recycled timber milk crate would be found to be a sculpture and therefore entitled to copyright protection on this basis.

Whether or not Armanious is found to have infringed copyright in Kennedy’s work will in turn be dependent on proof of copying, which may be direct or indirect (that is, whether there needs to be some causal connection between the first milk crate and the second). The independent creation of two identical artistic works will not give rise to copyright infringement, although a strong resemblance or similarity between two works is often relied upon to found an inference of copying.In this instance, the objective similarity between the two milk crate sculptures, the fact that they are of similar size and dimension and the fact that Kennedy’s work has been the subject of some publicity are all factors that Kennedy might point to in support of an inference that his work has been reproduced by Armanious.. On the other hand, there are clear differences, including shapes, colour and artistic purpose, between the two sculptures.   In addition, both are reproductions of a commonplace object – did Armanious copy a humble milk crate, or did he copy Kennedy?

While the question of whether Armanious’ blue milk crate does infringe upon Kennedy’s intellectual property rights remains to be answered, the episode brings to the fore questions of the extent to which the law will protect artistic originality.  Appropriation and adaptation of previous works by artists has become increasingly accepted by the artistic community in recent decades, particularly as part of the rise in popularity of “postmodern” and “experimental” art forms.Idioms such as “there is nothing new under the sun” spring to mind (as does Marcel Duchamp’s famous addition to Mona Lisa’s enigmatic smile).

If you are interested in doing some further reading, there are a number of well-known appropriation art cases that have been decided in the USA (where fair use may apply as a defence):

  • Cariou v Prince (2013) – the appropriation of photographs was, in the large part, not infringement;
  • Rogers v Koons (1992) – the appropriation of a photograph into sculptural form was infringement;
  • Seltzer v Greenday (2013) – the appropriation of an artwork into a Greenday stage design was not infringement, as it was fair use.

But where do we draw the line between inspiration and imitation? For a number of years, this has been a big question in copyright. In the age of easy copying and sampling (both in art and music), it is certainly only going to get bigger.