Art and copyright: what’s at stake

Art is created in a cultural context where appropriation is inevitable

For a long time artistic copyright has been a rather quiet backwater of copyright law, eclipsed by the protection given to literary works, software and music. But recently there has been a much greater interest in how copyright law protects visual art and the rights of artists to prevent others from copying their works. This reflects an increasingly advertising-led visual culture and also a greater awareness by rights holders that they have legal rights they can try to enforce. Cases where artists have sued or threatened to sue infringers are increasingly common, the case discussed in this issue concerning the works of the US artist Richard Prince being only one of a number of such cases. There have also been cases where corporate copyright owners have threatened action against artists—for example Graham Dolphin’s work which reuses magazine covers and in particular Vogue.

As well as giving artists the classic “economic right” exclusively to control the copying and publication/distribution of their works—what is typically called “copyright”—a number of states including the UK also give artists “moral rights”. Moral rights include the right to be identified as author when the work is published (the right of attribution) and the right to object to derogatory treatment of the work (the right of integrity).

Two areas of copyright law have been the focus of recent attention. First, the extent to which copyright law can protect artistic works (in legal terms, what artistic works can be protected by copyright) and second, assuming the work qualifies for copyright protection, what does copyright protect?

What works are protected

In the UK an artistic work can only be protected by copyright if it falls within an exhaustive statutory list (s4 Copyright, Designs and Patents Act 1988) of classes of artistic work protected by copyright: graphic works (irrespective of artistic quality), including paintings, drawings, diagrams, maps, charts or plans; engravings, etchings, lithographs, woodcuts or similar work; photographs, sculptures or collages (irrespective of artistic quality); works of artistic craftsmanship and works of architecture. (Video works are protected as “films”, a category of copyright work in their own right.) So whether innovative modern works of art (e.g. a “ready made”) would be classed as sculptures or works of artistic craftsmanship become fundamentally important questions. Recent UK case law suggests that where a work does not easily fit into a specific class of artistic work, the judge may well look at the intention of the creator and her status (as an “artist”).

Copyright laws generally protect “original” artistic works. The test for originality varies between states. In droit-d’auteur (continental) countries, a work needs to bear the stamp of the author’s personality and be the author’s own intellectual creation. In the UK, it is sufficient that the work is not a slavish copy of another work and that some, albeit limited, independent skill and effort went into its creation. In US law, the work must possess some minimal degree of creativity.

What does copyright protect?

The right of artists and creators to “appropriate” another artist’s work to produce a new artistic creation continues to be debated. In the UK allegations of plagiarism and misappropriation followed the exhibition in late 2000 of Glenn Brown’s Turner Prize entry The Loves of Shepherds 2000. This was allegedly inspired by Anthony Roberts’s book jacket illustration for the science fiction novel Double Star by Robert Heinlein. This was not the first time an artist has faced such allegations. In 1992 Jeff Koons was successfully sued in the US (Rogers v Koons) for copyright infringement. He had copied a well-known photograph Puppies to produce a sculpture he considered to be a parody of modern society. The Cariou v Prince case looks set to revisit US cases such as Rogers v Koons that deal with the “fair use” doctrine which provides a defence to copyright infringement where the alleged infringer can show, for example, that his use of another’s work is transformative and not in competition with the original work copied. The UK does not have a broad fair use defence so the Prince case is primarily of interest from a US copyright perspective, although it raises issues that should be debated in the UK about the scope of the so-called “fair dealing defence” in UK law and whether this should be broadened along US lines.

In proving copyright infringement, the test in the UK is whether the defendant has copied all or a substantial part of the work in ­question. UK copyright law also recognises the so-called “idea/expression” dichotomy—“copyright protection shall extend to expressions and not ideas” (see Article 9.2 of the Agreement on Trade-related aspects of Intellectual Property Rights). A recent trend is for advertising agencies to make use of the ideas behind the work of innovative artists. It is the idea/expression dichotomy that is central to a number of such cases involving photographic and film works being used by advertisers. For example, the 1997 Turner Prize winner Gillian Wearing has in the past complained that her works have been the inspiration for car and computer game advertisements. Whether this amounts to copyright infringement is problematic. There may be no copying of a substantial part of the original work: just the style or “idea” is taken, rather than the detailed expression of the idea, and the law has to set boundaries between what is and is not protected. Films pose particular problems as they arguably receive less protection than artistic works—the law here primarily focuses on the piracy of films and frame-by-frame copying rather than protecting the subject matter of a film as an artistic work in its own right, although there have been cases where the door has been opened to protect films by categorising them as “dramatic works”.

If a copyright claim is not going to work then other legal remedies may need to be considered (for example, the tort of passing off or some other act of “unfair competition” on the grounds there is a misrepresentation leading to confusion between the two works). But these are usually difficult claims to make and rarely succeed.

Getting the balance right

Artists involved in copyright cases tend to fall into two categories—those who find their work misappropriated (often in a commercial, advertising context who find the law may not protect them) and those who appropriate and recast others’ works to create new artistic expressions, such as Richard Prince, who may find the law over-­protective and not benefit from fair dealing or fair use defences.

Copyright has to be a balanced system—strengthen protection in one area and you erode the public domain, that is, the freedom for others to use the work of others as inspiration for their work or even in parody. Art is created in a cultural context where appropriation is inevitable—strengthen the law here and one artist’s gain may be another artist’s loss. But weaken the law here by a broad fair use defence and you remove the right of one artist to prevent the misuse of their work by another artist. That is why cases such as Cariou v Prince, which test the boundaries of current copyright protection, generate much interest and excitement in art law circles.

The writer is a partner with the law firm Blake Lapthorn in London and heads its art law practice. He is the author of Digital Copyright: Law and Practice (2009).

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