The analysis in an art copyright case can sound like a class
discussion in Art Appreciation 101. Take the case of Croak v.
Saatchi & Saatchi, which could also be called Pegasus
I v. Pegasus II.
The visual artist James Croak owns the copyright in his 1983
sculpture, "Pegasus, Some Loves Hurt More Than Others,"
pictured at top, which depicts a winged horse breaking through the
roof of a sleek lowrider. Croak sued Toyota and its ad agency,
which had created a set of Toyota RAV4 ads that showed that car
transporting a massive pink stuffed animal, a hybrid of a unicorn
and Pegasus. (Screen shot from car commercial above.)
The artistic comparison fell to Judge Jed Rakoff, of the U.S.
District Court for the Southern District of New York, who granted
Toyota's motion to dismiss, on the grounds that the two works
were not substantially similar for purposes of copyright law.
Judge Rakoff initially noted that the idea of a stuffed Pegasus,
even juxtaposed with the roof of an automobile, couldn't form
the basis for a copyright claim. Copyright doesn't protect
ideas, concepts or facts. So he had to strip the basic concept, of
Pegasus on a car, out of his analysis, and focus solely on the two
different creative expressions.
Judge Rakoff concluded that "there is almost nothing
similar" in artistic expression between the two works.
Croak's work, he found, was a "strikingly realistic and
life-like" depiction of what appeared to be an actual horse
with wings affixed to it. The Toyota commercial, by contrast,
featured "a pink, smiling, oversized stuffed animal,"
"not remotely realistic or life-like."
Even broadly looking at the total concept and feel of the two
works, he found them so different that no jury could reasonably
find them substantially similar. Croak's sculpture felt like a
living animal, the Toyota ads like a child's toy. Croak evoked
"raw power, independence, and escape," and "depicts
the supernatural by animating a mythological creature." The
Toyota ad simply evoked "light-hearted and playful"
"feelings of warmth, family and fun."
Judge Rakoff's opinion even includes a side analysis of
lowrider culture — a collateral point that might, in Art
Appreciation class, have qualified him for extra credit.
Essentially, Croak's use of the culturally significant
half-red, half-blue lowrider that "exudes cool" further
distinguished his work from the Toyota commercial, involving
"a modern family-friendly SUV in glossy blue"
(apparently, not cool at all).
As modern communication moves from words to visual content,
including photographs, interpretation of art is becoming
increasingly important in copyright law. Copyright lawyers may need
to dust off their Art Appreciation textbooks.
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