Law Times

Page 2 September 2, 2013 Law Times • NEWS Court considers artists' battle over copyright for crumpled paper paintings BY JULIUS MELNITZER For Law Times I s the whole of a painting the sum of its parts? That, essentially, was the question facing Justice Victoria Chiappetta in Rains v. Molea, a copyright infringement case at the Ontario Superior Court of Justice dealing with claims launched over paintings depicting crumpled paper. "Every painting, poem or news story is at some level made up of entirely unoriginal elements, and it's how you combine these elements into a final product that gives rise to uniqueness and originality," says Marguerite Ethier of Toronto's Lenczner Slaght Royce Smith Griffin LLP, who represented plaintiff Malcolm Rains, a Canadian artist, on a pro bono basis. "The challenge in a case like Rains is that if you start dissecting a work and saying it's a collection of unoriginal elements, it's challenging for subsequent creators to know the limits of their copyright protection." Over some 22 years beginning in 1991, Rains created about 200 large oil paintings in his classical series. All of the works featured white crumpled paper in still-life form on an undefined base against a dark background. Rains claimed Lucian Molea, represented by Robert Rueter of Toronto's Rueter Scargall Bennett LLP, had infringed his copyright in the series. WHY But Chiappetta dismissed the claim, reasoning that while each image in the series was original and attracted copyright on its own, no infringement had occurred. She also ruled that copyright didn't exist in the series as a whole. Molea is a Romanian-born artist who immigrated to Canada in 1999. Before that, Molea's paintings were expressionistic and emphasized the human form, floating structures, and geometrical features. They didn't feature crumpled paper in still-life form. But in 2000, Molea began painting realistic still-life works featuring crumpled paper. "Molea's interest in painting crumpled paper as a featured character stems from a previous preoccupation of creating a virtual reality," Chiappetta noted. "He intends to render and analyze simple material in a way that creates drama through a process that is random, different, and explores light, shadow, and volume." Chiappetta quickly reached the conclusion that each of Rains' paintings was original. Each image originated from Rains and was the product of his skill and judgment. "Rains' skill and judgment employed to create the final images are more than trivial and meet the originality test set out above," Chiappetta concluded. However, Molea's work didn't violate the copyright in the individual paintings as they weren't "substantially similar" to Rains' works. A comparison of 17 alleged points of similarity revealed that they were "conventional tropes or artistic devices common among painters" that weren't unique to Rains or original and therefore didn't enjoy copyright protection. "Because the common techniques aren't capable of copyright protection, the plaintiff cannot rely on these similarities to establish copyright infringement," wrote Chiappetta. According to Ethier, Chiappetta's approach amounted to a dissection. "And it's the dissection approach that's the interesting aspect of this case." Rueter, however, maintains Chiappetta's "very careful analysis" comported entirely with established law. "In my view, the claim was overreaching, ill-founded, and untenable," he says. "The decision is a vindication of freedom of expression because Rains' attempt to preserve to himself an exclusive right in this subject matter was a horrifying infringement on important civil rights in the arts context, so much so that it verged on abuse." As for the series as a whole, however, Chiappetta ruled that it wasn't a "compilation" that constituted an "artistic work" under the Copyright Act. "There is no evidence that Rains exercised skill and judgment to select a crumpled paper image and arrange it with others in the classical series such that copyright subsists in the arrangement of the series itself," wrote Chiappetta. LT I've fought for others my whole life, but I never had any intention of being a lawyer. After I got a degree in Judicial Administration, I planned to go into the bureaucracy to make change — to fix the system that I saw as broken. But while working as a court clerk, I soon realized that I couldn't effect the kind of change I wanted to without a law degree. I needed the credentials. So I went to law school in order to be on an equal footing with the people resisting change, so they would listen to me when I showed them a better way. Even when you are in the system it is difficult to change things for the better. It is virtually impossible for those outside the system, with no access. Somewhere along the line I fell in love with the practice of law itself. I see the opportunities for change both through advocacy and a general respect for a lawyer's skills. Now I fix things in the system, sometimes for one person at a time, and sometimes for thousands, but almost always for those who can't fix it themselves. So, in the end, I think I chose law school for all the right reasons. It may not always be easy, but I can tell you, in looking back, that I don't have any regrets. WENT TO LAW SCHOOL To know a lawyer is to know someone passionate about solving the problems of the day. Doug Downey, Lewis Downey Tornosky Lassaline & Timpano, is one of the 18,000 member lawyers of the Ontario Bar Association. Learn how the OBA advocates for this unique profession, and share your story at www.whyIwenttolawschool.ca. Untitled-1 1 www.lawtimesnews.com 13-08-27 8:15 AM

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