Journal of Intellectual Property Rights

Open Access Open Access  Restricted Access Subscription Access

The Interplay between Contemporary Art and Copyright Law


Affiliations
1 DPIIT IPR Chair Professor, Gujarat National Law University, Gujarat - 382 421, India
2 Boston University School of Law, Boston, MA 02215, United States
 

The Law of Copyright is capable of facilitating creativity as well as hindering it. Art has progressed over the years and the past few decades witnessed the expression of art in several forms. The market for contemporary art is thriving and this raises a very important question: Should the ambit of copyright law be extended or modified to protect newer forms of art work? As the art movement across the world is undergoing some dynamic changes, it becomes necessary to study the art protection laws across jurisdictions to hatch a regulatory framework, especially for contemporary artworks like appropriation art which are two fields of expression that are trickier than others. This article aims to provide a comprehensive deep-dive into the sufficiency of law and the changes that need to be made to both secure economic and moral rights of the creator and incentivize new art, but also to not thwart away the existing regime to accommodate trivial ideas, drifted from expression.

Keywords

Appropriation Art, Copyright, Fair Use Rule, Derivative Work, Fixation Requirement
User
Notifications
Font Size

  • Ames E K, Note, Beyond Rogers v Koons: A fair use standard for appropriation, Columbia Law Review, 93 (1993) 1473, 1477.

  • Cohen A B, Copyright Law and the myth of objectivity: The idea-expression dichotomy and the inevitability of artistic value judgments, Indiana Law Journal, 66 1 (1990)175.

  • Cone T, Fair Use? Rogers v Koons, Arts Magazine, December 1991, 25, 26.

  • Rahmani A, The blued trees symphony as transdisciplinary mediation for environmental policy, Mediating Art and Science, 3 (1) (2021).

  • R Smith, Conceptual Art, Concepts of Modern Art, 256 (1981) 260.

  • Janson H W, History of Art, 742-43 (3d ed. 1986).

  • Curtis C, O C Art; Kostabi works on view in fullerton; The artist's notoriety is based largely on kastabi world the assembly line enterprise he founded, L A TIMEs, Nov. 19, 1990, at Fl.

  • Greenberg C, Avant-Garde & Kitsch, in Poluock and Afrer The Critcal Debate 21 (Francis Frascina ed., 1985).

  • Kaplan I, Art Copyright, Explained, Artsy (2016).

  • Amy Adler, Why art does not need copyright, George Washington Law Review, 2018.

  • Petruzzeli L, Copyright problems in post-modern art, DePaul Journal of Art, Technology and Intellectual Property Law, 5 (115) (1994) 116-117.

  • Stim R, Copyright & fair use, Stanford Libraries.

  • Campbell v Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const. art. I, § 8, cl. 8) (alteration in original).

  • Fromer J C, Expressive Incentives in Intellectual Property, Virginia Law Review, 98 (1745) (2012) 1746-47 (discussing how the foundation of copyright and patent is granting incentives to create).

  • 17 U.S.C. § 107 (2012). As the Court explained in its detailed description of the importance of the transformative inquiry to the analysis of the other factors, "the more transformative the new work, the less will be the significance of other factors." Campbell v Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Kienitz v Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014) (questioning the prominence of the transformativeness inquiry and calling for a focus on the fourth factor).

  • Schubert & McClean, (2002) 173.

  • Bell A, 191 F.2d at 104-105, 22.

  • Greenberg L A, The art of appropriation: Puppies piracy and post-modernism, Cardozo Law's Arts & Entertainment Law Journal, 1 (1) (1992) 11, An example of a super realism, also called photo realism, is the work of chuck close. Close makes paintings of his friends' faces from photographs using an elaborate grid system to guarantee photographic exactitude. Close breaks down his strokes into minute dots within the grid system so there is no signature style, only the photographic image.

  • Section 101 of United States Copyright Act, 1976.

  • 17 U.S.C. § 106(3) (1988). 21 Mcleod K & Kuenzli R E, Cutting across media: Appropriation art, interventionist collag, and copyright law, 2011.

  • 88 U.S. 239 (1903).

  • 499 U.S. at 345.

  • Stokes, (2012) 32-33.

  • They were first used by French artist Marcel Duchamp.

  • And what is art if not choices. “In an unpublished interview, Duchamp, without the slightest ambiguity, lay the foundations of a syllogism: the word „art means to make and, (…) to make is to choose and always to choose.” Schubert & McClean, 2002, 190.

  • 1 Paul Goldsten, Copyright § 1.1 (1989).

  • 17 U.S.C. § 101 (1988).

  • The full definition is as follows: "'Pictorial, graphic, and sculptural works include two dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans." 17 U.S.C. § 101 (1988).

  • Smith R, Conceptual art, in Concepts of Modern Art, 256, 260 (Nikos Stangos ed. 1981).

  • Morgan R C, Idea, concept, system, Arts Magazine, September 1989, 61, 62.

  • Pelfrey R & Hall-Pelfrey M, Art and Mass Media, 1985, 323.

  • Feist Publications, Inc. v Rural Telephone Service Co., 111 S. Ct. 1282, 1287 (1992) (holding that arrangement of listings in white pages was not original expression).

  • 111 S. Ct. 1282, 1287 (1992).

  • Designers Guild Ltd v Russel Williams (Textiles) Ltd, 2000.

  • Stokes, 2012, 60.

  • “The liberation of ideas from copyright is but the affirmation of a work as an invitation to dialogue.” Drassinower, 2015, 66.

  • Wrapping of the Pont-Neuf Bridge in France.

  • The idea of replacing conventional clocks with alternatives has been used many times in the past. In Christian Marclay‟s „The Clock‟ (2010), a montage of thousands of different scenes with clocks, a real time 24-hour clock was made up. Ideas being blocked, artists would not be able to build upon such a concept no more.

  • “This may be the most difficult issue in copyright law, namely the border between protected „expression‟ and unprotected „ideas‟ (…) What is the point of inflexion past which protection against the creation of derivatives imposes too high a social welfare cost on other creators? What is the proper level of abstraction of copyright law, or should it be formulated as the

  • Shonack S, Postmodern privacy: How copyright law constrains contemporary art, Los Angeles Entertainment Law Review, 14 (1994) 281, 294.

  • Gallia, Carrie Ryan, To fix, or not to fix: Copyright‟s fixation requirement and the rights of theatrical collaborators, Minnesota Law Review, 2007.

  • Heymann L A, How to write a life: Some thoughts on fixation and the copyright/privacy divide, William and Mary Law Review, 2009, 844-852.

  • Land art or earth art is art that is made directly in the landscape, sculpting the land itself into earthworks or making structures in the landscape using natural materials such as rocks or twigs.”

  • “While such photographs have the effect of “fixing” the work for copyright purposes, the work itself remains unfixed according to the statutory language” of some jurisdictions.

  • USC.

  • Kelley v Chicago Park District, 2011.

  • Kelley, 635 F.3d at 301.

  • Describing Koons‟s Puppy as consisting of a wire fame, soil, geotexture fabric, an internal irrigation system, and constructed on the exterior entirely of plants and flowers

  • Section 3(2) of the CDPA provides that: “copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise.” Copyright, Designs and Patents Act, 1988.

  • Stokes, 2012, 53.

  • Merchandising Corp of America Inc v Harpbond, 1983. The case concerned the publication, reproduction and alteration of copyrighted photographs.

  • Rosenmeier &Teilmann, 2005, 56.

  • Metix (UK) Ltd v G H Maughan (Plastics) Ltd, 1997. The case examined whether or not the plaintiff‟s moulds made for casting industrial products were copyright protected as works of sculpture.

  • Stokes, 2012, 54.

  • Both the Lacan and Barthes cases concerned the publication of speeches without the consent of their author. In both cases the French Courts ruled that such an action is infringing. Derclaye, 2009, 141.

  • Carpenter & Hetcher, (2014) 2259.

  • Derclaye, (2009) 141.

  • Tehranian J, Infringement nation: Copyright reform and the Law/Norm Gap, Utah Law Review, 537 (2007) 539.

  • Landes W M, Copyright, borrowed images, and appropriation art: An economic approach, George Mason Law Review, 9 (1) (2000) 1.

  • Lipman J & Marshall R, Art about Art, 6-7 (1978); Arewa O B, The freedom to copy: Copyright, creation, and context, U C Davis Law Review, 41 (2007) 477, 495.

  • Yonover G J, The precarious balance: Moral rights, parody and fair use, Cardozo Arts & Entertainment Law Journal, 14 (1996) 79, 80.

  • Campbell v Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

  • Arewa O B, The freedom to copy: Copyright, creation, and context, U C Davis Law Review, 41 (2007) 477, 495.

  • Rogers v Koons, 960 F.2d 301 (2d Cir. 1992).

  • Timothy Cone, Fair Use? Rogers v Koons, Arts Magazine, December 1991, at 25, 26.

  • Perfect 10 Inc. v Amazon.com Inc. 508 F.3d 1146 (2007); Mattle Inc. v. Walking Mt. Prods. 353 F.3d 792 (9th Cir. 2003); Hoepker v Kruger 200 F. Supp. 2d 340 (2002); Paramount Pictures v DemiMoore, etc.

  • Andy Warhol v Goldsmith, 19-2420 (2nd Cir 2021).

  • The Copyright Act, 1957, Section 52(1) (a)(ii).

  • Barry Blinderman, Keith Harjng: Future Primeval, 22 (1990).

  • Campbell v Acuff-Rose Music, Inc., 510 U.S. 569, 589 (1994). However, appropriation art is not necessarily parody, so it is not always protected. Michael A E, Miss Scarlett's license done gone! parody, satire, and markets, Cardozo Arts & Entertainment Law Journal, 20 (2002) 601.

  • Campbell v Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994). Other commentators have followed this same line of thinking. Richard Posner believes that satires are not fair uses when they use the original work not to comment upon it, but to use that original work to attack something else. Richard A P, When is parody fair use, Journal of Legal Studies, 21 (1992) 67.

  • Burr S L, Artistic parody: A theoretical construct, Cardozo Arts & Entertainment Law Journal, 14 (1996) 65, 67.


Abstract Views: 141

PDF Views: 76




  • The Interplay between Contemporary Art and Copyright Law

Abstract Views: 141  |  PDF Views: 76

Authors

Annamma Samuel
DPIIT IPR Chair Professor, Gujarat National Law University, Gujarat - 382 421, India
Rachel Florence James
Boston University School of Law, Boston, MA 02215, United States

Abstract


The Law of Copyright is capable of facilitating creativity as well as hindering it. Art has progressed over the years and the past few decades witnessed the expression of art in several forms. The market for contemporary art is thriving and this raises a very important question: Should the ambit of copyright law be extended or modified to protect newer forms of art work? As the art movement across the world is undergoing some dynamic changes, it becomes necessary to study the art protection laws across jurisdictions to hatch a regulatory framework, especially for contemporary artworks like appropriation art which are two fields of expression that are trickier than others. This article aims to provide a comprehensive deep-dive into the sufficiency of law and the changes that need to be made to both secure economic and moral rights of the creator and incentivize new art, but also to not thwart away the existing regime to accommodate trivial ideas, drifted from expression.

Keywords


Appropriation Art, Copyright, Fair Use Rule, Derivative Work, Fixation Requirement

References