Copying: theft or tribute?

Picasso once said, “Good artists copy; great artists steal.”

In this context, “stealing” does not mean copying something one-to-one, but rather absorbing ideas from others as inspiration for one’s own creations. The line between inspiration and copying is a fascinating one and has fueled countless copyright disputes for decades. In trademark and design law, too, the appropriation of distinctive designs, logos or catchy names often sparks debate.

While some artists, companies, musicians, and others see copies as a compliment — the ultimate validation of the success of their creation, product or brand — a copy can also be highly frustrating. After all, it means that others are benefiting from their effort and success. Lawyers regularly point out the negative consequences of copying behavior and emphasize that the risk of infringing intellectual property rights is real.

Yet there are exceptions. The use of a sample, provided it is properly licensed, is common in music and a popular way to enrich new tracks or convey a particular message.

In graffiti art, appropriating images is often considered a form of tribute or commentary on the original creator’s work. Even major names do this, including Banksy. In his piece Banksquiat. Boy and Dog in a Stop and Search, he directly references Basquiat’s famous Boy and Dog in a Johnypump. Banksy’s work appeared on a street opposite the Barbican Art Center in London, coinciding with the opening of a Basquiat exhibition.

This piece by Banksy raises interesting questions: does it constitute copyright reproduction (and therefore infringement)? Or has Banksy created an original artwork, despite the clear copy and allusions to Basquiat? And should it even be considered infringement when the work is clearly a tribute and aims to highlight a social message (institutional racism) once again?

Interestingly, Banksy’s images have also been recently used in a social context: after a man threw a sandwich at a police officer in protest against the presence of the National Guard in Washington, a classic Banksy image (a boy throwing a bouquet of flowers) was adapted to depict a boy throwing a sandwich.

Author: Arnaud Bos

Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.