IPKAT VISITS THE ICA

The IPKAT (and its masters) paid a visit to the Institute of Contemporary Arts to hear Hogarth Chambers barristers Ashley Roughton and Simon Malynicz conduct a mock trial over whether Honda’s “Cog” car advert infringes Fischli and Weiss’ film Der Lauf der Dinge (The Way Things Go). Fischli and Weiss’ film consists of a series of everyday objects falling in a domino effect, while Honda’s two minute advert involves parts of a Honda Accord falling in similar fashion, eventually causing a complete Honda Accord motorcar to roll off a slope and unfurl a banner. The argument centred on whether copyright subsisted in Fischli and Weiss’ film as a dramatic work and whether, if it did, there was a taking of a substantial part of their work (as is necessary for copyright infringement) by Honda in its advert.

Honda "won" because they had not taken enough of the original work to have infringed it, although their activities did not meet with approval. A few points stand out though:

 The protection of contemporary art by copyright is a new and controversial area. Many examples of such art do not fit easily (if at all) into the taxonomy of works that are listed in the statute as being eligible for copyright protection and so may not be protected by copyright. With the exception of Norowzian v Arks (No. 2) [2000] ECDR 205 there’s also very little precedental authority in this area.

 Contemporary art v. advertising cases are a two-way street. Sometimes advertisers are inspired by and imitate art works but often it’s the other way around and it’s the artists who take off adverts. The legal issues can be different though because the later case may be viewed as a parody while the former case is more clearly commercially driven.

 Simon suggested that works of art that are intended to parody other works of art or adverts may benefit in the UK from the fair dealing for the purposes of criticism or review defence to copyright infringement. This is an intriguing prospect, although the artist may have a hard time proving this because the criticism of the earlier work is generally implied and left for the viewers to figure out for themselves.

 Honda’s advert has been parodied in another advert (be patient and click on the top TV) for 118 118 phone directory services. If Honda’s advert was found to be infringing, would the parody advert also have infringed Fischli and Weiss’ film?