Is this copyright infringement?

The painting on the left is by a Chinese-born artist named Zheng Li.  It’s called “Piano No. 9″. Li is not exactly an art-world fixture. For years, he lived in the U.S. and ran an art gallery in Roswell, GA. He has sold art to private individuals and corporations. But as far as we can tell, he hasn’t broken through to broader public notice.

That may change now. The painting on the right, titled “Piano Coloratura” and signed by someone named “P. Robert”, has been on sale in major outlets such as Kohl’s, J.C. Penney, and Z Gallerie. Li has sued all of these retailers, plus over 20 more who have sold “Piano Coloratura”, claiming that they are infringing his copyright in “Piano No. 9″.

Does Li have a case?  Well, the paintings are certainly very similar, and that alone may get Li quite far with a jury. But if we look closer, it’s actually a really close case, and the correct outcome is difficult to call.  Why?

Given how similar the paintings are it’s hard to believe that Li’s painting wasn’t copied. But if you break the paintings down, you’ll find that a lot of the copying at issue here isn’t actually illegal. For example, both paintings show a baby grand piano. But Li cannot own copyright in all pictures of baby grand pianos. And indeed, the baby grand in “Piano Coloratura” looks a bit different from Li’s piano. It’s shaped just a bit differently — and these small differences matter because all baby grand pianos look much alike, at least in their overall shape. Similarly, the “Piano Coloratura” piano is rendered at a similar angle to Li’s piano, but again, Li doesn’t have copyright in rendering pianos from the side. The pianos are also painted in a similar style using patches of bright color. But again, the execution of the style is not the same — the borders between colors are less distinct in Li’s painting — and, more broadly, copyright should not give any one artist ownership of a particular style of painting. Does impressionism belong to the first impressionist?  Cubism to the first cubist?  The same goes for colors. Copyright doesn’t allow anyone to own a color (trademark does, in a more limited sense that is not relevant here . . .).

So, is there a copyright claim? Yes. Li has a copyright claim in his original selection and arrangement of these otherwise uncopyrightable elements of subject matter, style, and color. In other words, Li has a copyright in the particular sum of the uncopyrightable parts.

The real question is how broad, or “thick”, a “selection and arrangement” copyright like this should be. Clearly, Li should have a copyright claim against anyone who reproduces his painting exactly — if the selection and arrangement copyright means anything, it must prohibit precise replication of Li’s painting, as would happen if someone simply pirated it and printed up a thousand copies. But how far should Li’s “selection and arrangement” copyright go in prohibiting mere “look-alike” paintings? That’s a very deep question, and one which is unsettled in the copyright law.

“Piano Coloratura” is not an exact copy. But it is pretty damn close. This is a borderline case. We’ll be watching.

The ultimate Knockoff Economy: Humans innovate by knocking off nature

Take a look at this wonderful article in the Smithsonian magazine, which discusses the burgeoning science of “biomimicry” — i.e., innovation based on knocking off nature.

The article gives many examples in which innovators create new things by imitating natural substances, structures, and processes.  For example, the wonderful blue morpho butterfly (pictured at left) gets is stunning color not from a pigment, but from the nanoscale arrangement of the plate structures in its wings, which are arranged to interfere with light waves in a way that produces the color.  Now, researchers at cell phone firm Qualcomm have imitated the blue morpho structure in the new screens that it’s hoping to install in the next generation of e-readers — screens that use adjustable morpho-like plates to produce different colors with no loss of readability in bright light and very little use of power.  And fashion designers are using the morpho-like structures in new fabric to produce brilliant, iridescent blue dresses that shine brilliantly in sunlight.

The article relates to an important point we make in The Knockoff Economy. Innovation doesn’t come out of nowhere.  It often involves taking what already exists, adapting it, turning it to new uses, and making it better.  Biomimicry is a great example. There’s something very human — and very innovative — in knocking off nature.

The Knockoff Economy in Wired

We have a piece in Wired looking at court fights over smartphones (Apple/Samsung) and stilettos (Louboutin/Yves Saint Laurent). You might think these spats have nothing in common. But in fact, both are about a critical frontier in copying and competition: using design to gain control over function – and thereby gain control over markets. (Photo credit: Ariel Zambelich/Wired).

The Knockoff Economy in the L.A. Times

This morning Kal and I have an op-ed in the L.A. Times applying some of the lessons from The Knockoff Economy to the Apple/Samsung patent battle. Here’s a quick taste:

Apple, in designing the iPad and iPhone, created its version of a rectangular reading platform. Yet now Apple has succeeded in punishing Samsung for much the same thing: copying a rectangular design. And this highlights a central issue in today’s innovation-based economy. What is the proper balance between competition and copying?

Intellectual property law is based on the notion that copying is bad for creativity. It is usually cheaper to copy something than create something wholly new. If innovators are not protected against imitation, they will not invest in more innovation. At least that’s how the story goes.

The real world, however, tells a different story. Imitation is at the center of an enormous amount of innovation. Rules against copying are sometimes necessary. But in many cases, they serve to slow down innovation. Copying, in short, is often central to creativity.

Freakonomics runs a “tweakonomics” excerpt from The Knockoff Economy

The Freakonomics blog runs an except from the book where we talk about innovation in music — specifically, how musicians copy — and tweak — other artist’s songs.  We all know these as “cover” songs. They are immensely important in our musical culture — some of the best pop music ever (Hendrix’s version of Bob Dylan’s “All Along the Watchtower”, anyone?) has been covers of others’ songs.  And all this innovation is made possible, in part, because American copyright law allows it to happen.  Anyone is free to record a cover version of another songwriter’s composition — as long as they pay a (very low) fee.  And the freedom to cover hasn’t stopped people from writing new songs. It’s an important case of innovation without intellectual property, one which we see (actually, hear) everyday but don’t ever really notice.