The intellectual property issues surrounding social media influencer aesthetics have recently received attention in the United States after one influencer asserted a variety of claims against another influencer. The claims include allegations of copyright infringement over social media posts said to replicate a particular aesthetic.
As social media influencer marketing continues to grow in popularity as a viable career path, it is increasingly relevant to explore the ways in which social media influencer content can be protected, including copyright law protection. This raises an important question in relation to Canadian copyright law, namely, where is the line between copyright infringement and stylistic similarity?
In Canada, copyright law protects original literary, dramatic, musical and artistic works. Copyright includes the sole right to reproduce a work or any substantial part thereof. As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein. It is a flexible notion and is not limited to the “words on the page or the brushstrokes on the canvas”, as the Copyright Act protects authors against both literal and non-literal copying.
Copyright law protects the original expression of ideas, but it does not protect ideas in and of themselves. Canadian courts have consistently recognized the importance of striking a balance between the rights of authors to have their skill and judgment protected and the rights of users to keep ideas in the public domain, free for anyone to draw upon. For there to be infringement, there must be a copying of the expression, not the ideas, concepts or underlying facts.
In the 2021 case Bouchard c Ikea Canada (2021 QCCS 1376), the Superior Court of Quebec dismissed a copyright infringement action alleging that the Defendant had copied the Plaintiff’s idea of turning children’s drawings into soft toys. While both parties relied on similar manufacturing techniques and creative styles, the Court held that these are not proper subjects of copyright. The Court noted that to hold that a style is protectable would be akin to declaring that only Monet could paint in the Impressionist style.
The Superior Court of Ontario reached a similar conclusion in Rains v Molea (2013 ONSC 5016) where it considered the paintings of two artists who had the same (and not unique) idea to paint crumpled paper in a realistic way using conventional painting techniques. The Court found that works were different and that the similarities arose from the use of a similar style.
The distinction between copyright infringement and the permissible use of artistic styles and methods is not always clear, especially when similarities arise due to shared stylistic choices. Determining whether a work constitutes infringement requires careful analysis of whether the similarities stem from protected original expression or from broader stylistic elements that remain free for all to use.
The alteration of copied features or their integration into a work that is notably different from a plaintiff’s work does not necessarily preclude a claim that a substantial part of a work has been copied, as the Act protects against “colourable imitations”. When determining whether a substantial part of a work has been copied, Canadian courts have generally given more significance to the quality of the parts taken over their quantity. In Cinar v Robinson (2013 SCC 73), the Supreme Court went beyond a mere side-by-side visual comparison of the Plaintiff’s and Defendant’s works, and adopted a qualitative and holistic approach to determine whether a substantial part of the Plaintiff’s work had been copied.
However, as a general rule, there is a stronger likelihood of infringement the more a person replicates the actual expression of a work, for example, its distinctive features, details, and characteristics.
The ongoing US lawsuit serves as an example of the potential risks involved when creating something inspired by or derived from preexisting works. Even if a work is not a direct copy, substantial similarities in distinctive elements may give rise to legal challenges, making it crucial for creators and businesses alike to navigate these issues with care.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.