-Wes Anderson, Attorney

Can an artist’s particular style of art constitute both copyrightable expression and trade dress?

Brazilian artist Romero Britto has filed suit against two artists known as “Craig & Karl” for copyright infringement — and since the artists’ work was featured by Apple, Britto has sued the company as well for trade dress infringement.

Britto’s complaint, filed in the Southern District of Florida earlier this month, alleges that Britto “is beloved throughout the world and his unique and colorful fine art works are sold and exhibited in hundreds of galleries and museums across the globe.” Britto’s works employ various colorful clashing patterns applied to everyday items, as shown below:

Britto Works

Britto alleges that a variety of Craig & Karl’s past works appropriate this style, and offers a variety of colorful comparisons in the complaint.

Britto Comparison

When an artist files an infringement suit based on his past works, the natural assumption is that copyright — and only copyright — is at issue. And while Mr. Britto does allege copyright infringement, it only extends to Craig & Karl’s own works.  The wrinkle in this case: Britto only became aware of Craig & Karl’s work because the duo was featured in a recent Apple ad campaign with the (now-ironic) title “Start Something New,” featuring various works created exclusively using Apple products. As shown below, Craig & Karl’s image employs a similar series of patterns and colors to depict “the creative power we have at our fingertips.”

Apple Ad CK

To reach Apple as a defendant, Britto alleges that his works aren’t simply copyrightable expressions but comprise the “Britto Trade Dress” — i.e., “a series of unique registered and unregistered trademarks and distinctive trade dress to identify the BRITTO™ brand’s expansive line of goods and services to consumers.” He defines his trade dress within the complaint rather broadly:

The overall Britto Trade Dress is composed of a specific combination of elements that are used in BRITTO® products, promotional materials, and packaging—vibrant color combinations, often dominated by bright yellow; compositions constructed by the juxtaposition of randomly shaped swaths of recurring distinctive patterns (including polka dots and stripes) to form the subject matter of the image, with each compositional element all outlined in bold black strokes; and uplifting, bright and happy visual themes. This specific combination of visual elements when taken in its entirety creates a distinctive overall visual impression that is uniquely “BRITTO,” and serves as a source identifier for Plaintiff’s products, promotions and services.

While the image used in the Start Something New campaign may have no direct comparison to a past Britto work, Britto alleges that it is similar enough to create a likelihood of confusion as to source, association, endorsement, or sponsorship under the Lanham Act. As a sidenote, Mr. Britto does own six trademark registrations in the U.S., including registrations for the BRITTO and ROMERO BRITTO (Stylized) marks for “paintings” and “artistic design services for others in the field of commissioned artworks.”

Britto further alleges that the deleterious effects of Apple’s ad campaign constitute actual confusion between his work and Craig & Karl’s:

As with any Apple campaign, the Start Something New Campaign had massive exposure and breathless press coverage, and many of the media profiles prominently featured the Infringing Apple Image. Plaintiff was inundated with reports of the Start Something New campaign and the Infringing Apple Image. These reports ranged from, for example, incorrect congratulations on Mr. Britto’s new deal with Apple, to consternation from business partners in potentially collaborative or competing product categories, to inquiries from collectors wanting to know if the image they saw in the Apple store or on the Apple website was by Romero Britto.

While the image used in the Start Something New campaign does appear to share features with Britto’s past works, it remains to be seen whether Britto can successfully establish trade dress protection for his artwork.  Trademark law does not apply naturally to artistic expressions alone — instead, the works must function as a brand and have recognized “secondary meaning” to the public as an indicator of source.

Britto’s definition of his trade dress seems quite broad, and courts may be hesitant to grant Britto a monopoly in “vibrant color combinations,” “the juxtaposition of . . . distinctive patterns” and “bright and happy visual themes.” That said, Britto’s complaint is detailed enough to allege significant notoriety and goodwill as to his particular style of art, and he appears to have sufficient marketing savvy to protect the core elements of his brand (such as the BRITTO mark itself). It will be interesting to see if Britto is willing to pursue his trade dress claims to the bitter end, if for no reason other than to create an interesting precedent.

And as for the copyright claims: generally speaking, an artist’s particular “style” cannot be copyrighted. But it is an open question as to whether a “critical mass” of design cues can be appropriated to the point of constituting copyright infringement.  The standard is whether the allegedly infringing works are “substantially similar” in terms of expression — i.e., the use of patterns, color, similar depiction of items, etc. The recent “Blurred Lines” verdict has shown that juries are willing to find copyright infringement among similar, though not identical, works.

So has Britto been wronged? Or have Craig & Karl Start(ed) Something New?