Celeb artist Andy Goldsworthy’s case against Habitat and its agency over chairs in giant snowballs has been settled out of court. We report on the deal and the implications.
Topic: "Inspired" advertising
Who: Andy Goldsworthy, Habitat and devarrieuxvillaret
Where: London
When: November 2003
What happened:
Retailer Habitat and its advertising agency devarrieuxvillaret ("DV") reached a settlement with successful British artist Andy Goldsworthy in proceedings over a 2002 poster campaign.
As previously reported on marketinglaw.co.uk, Goldsworthy was not happy when he came across the Habitat campaign, featuring giant melting snowballs from which embedded Habitat chairs protruded. The image was uncannily similar to Andy's "Midsummer Snowballs" exhibition two years previously.
This featured giant snowballs created by Goldsworthy and shipped to central London in the height of summer. Fourteen of them were placed in various locations across London, where they proceeded to melt in the summer sun, revealing their natural contents, including sticks and stones.
Able to command commissions of over half a million, Goldsworthy was also associated with highly priced art books that sold hundreds of thousands of copies, one of them focusing on the Midsummer Snowballs exhibition.
Goldsworthy sued Habitat and DV for passing off and copyright infringement. The advertiser and its agency tried to get the case struck out, but were unsuccessful. Weeks later, with a full trial looming, Habitat and DV reached a settlement with Goldsworthy. They paid him £70,000 and made a public apology. In the apology, DV stated that they were sorry if the advertisement misled some people and wished to apologise to Andy Goldsworthy for any embarrassment he may have suffered.
Why this matters:
This is an out of court settlement, so we have no court judgement on the validity of Goldsworthy's claims. Had the case gone to court, there may have been some considerable debate as to whether Goldsworthy's snowballs classified as original works of sculpture and therefore qualified in an artistic work capable of being protected by the Copyright, Designs and Patents Act 1988. If they had done so, then it is difficult to see how Habitat/DV would have had any real prospect of arguing against their equivalent image being a copy of a substantial part of the Goldsworthy works and therefore infringing Goldsworthy's copyright.
On passing off, there could be no doubt that Goldsworthy was a successful artist with a considerable reputation and an ability to earn substantial commissions. So he would have had no real difficulty establishing "goodwill", the first building block of a case in passing off. The second is establishing a "misrepresentation" on the part of the defendants. In this context it would have been to the effect that Goldsworthy had in fact been commissioned to create the image which featured in the Habitat campaign. Again one can see that Goldsworthy's claim would have had considerable mileage here. The third and last requirement would be to show damage, for instance by way of Goldsworthy's reduced ability to command substantial commissions if it became known that his creations had been the inspiration for advertising for which he had received no payment.
Against this background, it is hardly surprising that Habitat and DV settled, and there can be little doubt that with an unsuccessful striking out application along the way, the legal costs would have been significantly more than the settlement figure of £70,000.
As we have commented before in this case, the moral of the story is that advertisers who are "inspired" by distinctive works of art should take extreme care…and expert legal advice.
