But Is It Art?

What counts as an "artistic work" for purposes of special protection under the Texas anti-SLAPP statute?

In VSMSQ Structural Engineers, LLC v. Structural Consultants Assocs., Inc., decided last month by the Texas Court of Appeals (Houston), in an opinion by Justice Richard Hightower, joined by Justices Peter Kelly and Julie Countiss, SCA alleges that ex-SCA employees formed VSMsq, and used SCA's proprietary information to compete with SCA. Both companies are structural engineering firms, and SCA argued, among other things, that VSMsq engaged in tortious misappropriation by "posting of the images of buildings engineered by SCA on VSMsq's website for the purpose of promoting Appellants' engineering services."

Appellants sought to get the case thrown out under the Texas Citizens Participation Act—Texas's "anti-SLAPP" statute:

The TCPA "protects speech on matters of public concern by authorizing courts to conduct an early and expedited review of the legal merit of claims that seek to stifle speech through the imposition of civil liability and damages." … The TCPA provides a mechanism for dismissal of a "legal action" that is "based on or is in response to" … [among other things, a] party's exercise of its right of free speech….

The TCPA excludes commercial speech. But this commercial speech exclusion itself has an exclusion, which provides that the TCPA does apply in (emphasis added)

a legal action against a person arising from any act of that person, whether public or private, related to the gathering, receiving, posting, or processing of information for communication to the public, whether or not the information is actually communicated to the public, for the creation, dissemination, exhibition, or advertisement or other similar promotion of a dramatic, literary, musical, political, journalistic, or otherwise artistic work, including audio-visual work regardless of the means of distribution, a motion picture, a television or radio program, or an article published in a newspaper, website, magazine, or other platform, no matter the method or extent of distribution.

And the court concluded that Appellants' use of the building images was commercial speech, and that the "artistic work" exception didn't apply:

As discussed, SCA's misappropriation claim arose from Appellants' conduct of posting images of buildings structurally engineered by SCA on VSMsq's website for the purpose advertising and promoting Appellants' engineering services. Appellants assert that, because they incorporated SCA's structural engineering designs, the buildings depicted in the images on VSMsq's website were "artistic works," as that term is used in subsection 27.010(b)(1)….

The TCPA does not define the term "artistic work," and no Texas caselaw discusses its meaning. When the Legislature does not define a statutory term, we "use tools of statutory construction to determine its meaning." Under the rules of construction, "we ascertain and give effect to the Legislature's intent as expressed in the language of the statute."

Subsection 27.010(b)(1)'s use of the modifier "otherwise" before the term "artistic work" invokes the ejusdem generis canon of construction, which limits the scope of the catchall language to the same class or category as the specific items that precede it. "In a similar fashion, the noscitur a sociis canon of construction provides that words must be construed in context to comport with the surrounding text." Here, "otherwise artistic work" follows a list of specific types of artistic works, namely, "dramatic, literary, musical, political, [and] journalistic [works]." Under the doctrine of ejusdem generis, we limit the application of the general phrase "otherwise artistic work" to the type of artistic work characterized by "dramatic, literary, musical, political, [and] journalistic [works]."

We note that "art" may be defined as (1) a "[c]reative expression, or the product of creative expression" or as (2) "[a]n occupation or business that requires skill; a craft." Here, the listed "dramatic, literary, musical, political, [and] journalistic [works]" are best characterized as creative expressions or products of creative expressions that convey or express information, messages, or ideas. This characterization is supported by the examples of specific artistic works listed in subsection 27.010(b)(1), namely, "audio-visual work …, a motion picture, a television or radio program, or an article published in a newspaper, website, magazine, or other platform."

Appellants assert that "engineering has long been recognized to be an art form in addition to a scientific endeavor." But Appellants provided no definition or description of what the structural engineering here entailed or what was involved in the preparation of the structural engineering designs incorporated into the buildings depicted on VSMsq's website. We note that SCA's first amended petition states that SCA's "engineering designs" for the buildings depicted on VSMsq's website "specif[ied] the structural requirements necessary to implement the architectural design for the respective buildings." That description connotes no element of creative expression. While structural engineering may be an art in the sense that it is an occupation that requires skill, and the engineering designs may have some artistic qualities, the record contains no indication that the buildings are "artistic works" in the sense that the engineering aspects of the buildings are of the same or similar character as "dramatic, literary, musical, political, [or] journalistic [works]." …

Andrew Cobos and Nicholas Kacal represent SCA.