When Habitat recently tried to strike out a claim against it over ads featuring chairs coming out of melting snowballs, the judge didn’t think the claims were as watery as all that.
Who: Andy Goldsworthy and Habitat
Where: Chancery division of the High Court of Justice, London
When: Autumn 2003
Scottish contemporary artist Andy Goldsworthy devised the outdoor art technique of creating huge snowballs in his native Scotland encasing objects such as pieces of wood or metal. He then relocated the snowballs to slightly less cold locations such as the streets of the City of London, where they slowly melted to reveal their hidden content, to the amusement of passers-by.
Goldsworthy also published a book on the technique, featuring many photographs of the snowballs both in their original form and as they slowly melted in their chosen locations.
All fine and dandy, until Goldsworthy came across advertising for housewares retailer Habitat. It featured a melting snowball out of which a Habitat chair was starting to protrude.
Goldsworthy was not impressed, and when his demands for a curtailment of the campaign were met with denials of liability, he issued proceedings for passing off and copyright infringement. A recent application to the Court by Habitat to have the Goldsworhty claim struck out as disclosing no reasonable cause of action was rejected and the case is now due to come on for trial by early 2004, unless of course it is settled in the meantime.
Why this matters:
In the proceedings Goldsworthy claims that as a result of the location of his melting snowballs in public sites around the country, and by way of the publication and sale of his book, the "large melting snowball revealing objects inside" concept has become well known as distinctive of his output and reputation as a contemporary artist.
Adopting the required approach in passing off cases, therefore, Goldsworthy claims he has built up goodwill in a business operated using the snowball concept and that he has suffered damage as a result of the Habitat advertising conveying the misleading impression that he has been paid to have his distinctive output used in that way.
The copyright claim is based on an assertion that the snowballs are "artistic works" which have been substantially copied by Habitat in their advertising, thus infringing Goldsworthy's rights.
The tort of passing off is notoriously difficult to establish, but one can see that at least the basic building blocks of passing off and copyright infringement claims are present in this case, although the final outcome in Chancery is more difficult to predict.
What may have been less difficult to predict was Goldsworthy's initial objection to the Habitat advertising, and the considerable legal costs that are now being run up by both sides in long-running litigation.
It is often difficult to pin down exactly where the inspiration for some advertising imagery came from. Often with strikingly distinctive concepts for a new advertising campaign, due diligence may reveal one particular source of inspiration. Having reached that point, the taking of expert legal advice is advisable before going beyond the point of no return.