Could Thomas Kinkade assert a property right over his “style”?

Frank Pasquale writes that the painter Thomas Kinkade may be positioning himself to be able to assert copyright or trademark claims over people who allegedly appropriate his style. There are several problem that would face Kinkade. First, it’s difficult to protect a “style” rather than a “work.” Second, Kinkade’s style has been described as something less than an original one: Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: “‘He has a vocabulary, as most painters do. And it’s a vocabulary of formulas, unfortunately. And he shuffles the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on, rocks. And you end up with this.’” Kinkade’s own instructions on how to make a film in his style may not belie this criticism that his “style” is little more than a simple formula:

Whenever possible utilize sunset, sunrise, rainy days, mistiness — any transitory effect of nature that bespeaks luminous coloration or a sense of softness.

Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual pacing. Even quick cut-away shots can slightly dissolve.

[Make] references to my anniversary date, the number 52, the number 82, and the number 5282 (for fun, notice how many times this appears in my major published works). Hidden N’s throughout — preferably thirty N’s, commemorating one N for each year since the events happened.

There’s no question, though, that a court would hold that copying a Kinkaid painting whole would constitute copyright infringement, (Doing so in small, electronic form for purposes of commentary and criticism, however, would constitute non-infringing fair use.) Even maps, as Pasquale points out, are protected by copyright against wholescale copying, even if the underlying information they compile is entirely factual. That’s why mapmakers used to put fictional locations in obscure places on their maps — people who copied such maps whole would be revealed by the use of the fictional place. But can a “style” be protected? That would be a difficult position to maintain, especially given the legitimate influence any successful artist will necessarily have. Nevertheless, Pasquale concludes, “It’s a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable.”