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Intellectual Property

Difficult to prove artwork plagiarized

Claims by an American artist that an installation for the Pan Am Games in Toronto is a rip off of his work would face difficult hurdles if the case went to court on copyright infringement, says Toronto intellectual property lawyer John Simpson.

The Toronto Star reports artist Jim Sanborn called a bronze sculpture on display at Exhibition Place “quite stunning” in its similarity to his work.

“It’s something I’ve done for 23 years, and so it’s a little hard to stomach seeing that kind of plagiarism,” Sanborn told the Star.

The article reports both pieces use a centerpiece engraved with names cut into a cylinder — in the Toronto case it was the names of the athletes participating in the Pan Am Games — and then at night a light projects the names to the surrounding environs.

Simpson, principal at Shift Law, says this issue highlights the difference between copyright and other forms of intellectual property.

“You would have to show that there was prior exposure to Sanborn’s work. There would be no copyright infringement if the Toronto artists can show they never saw his work and created their design independently,” he tells AdvocateDaily.com.

He says in order to litigate, a lawyer would have to piece together the favourable facts but even with remarkable similarity, the case would still hinge on prior exposure.

“You could try to sue for monetary compensation and to demand it be taken down but that would be very difficult,” he says.

There’s no way within the law to copyright an idea, Simpson says. It’s only the expression of the idea which is protected.

“To be successful you would have to prove access to the original, that there are substantial qualitative similarities between the works and then whether the expression of the idea and not just the idea itself was copied,” he says.

 

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