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Alliance Center for
Intellectual Property Rights


COPYRIGHTABILITY OF CONTEMPORARY ART

November 1, 2023

*Ms. Shreyanshi Singh

INTRODUCTION

Copyright law protects artistic creation by offering a framework and a set of financial incentives. By granting an artist right over their creations, the Copyright Act fosters the production of a wide range of creative works across many different disciplines. Instead of defining art to achieve this goal, the Copyright Act creates flexible categories of works that are eligible for protection. Despite having such a broad framework and a flexible methodology, the Copyright Act does not adequately protect many post-modern art forms.

Copyright is stated to exist in “original” literary, dramatic, musical, and artistic works under Section 13 of the Copyright Act of 1957, however, the Act does not define “originality” as such. There are several doctrines that complement this criterion such as Idea-Expression Dichotomy, Doctrine of Sweat of Brow, etc.

Post-modernism contests the traditional criteria for originality, ownership, and expression that characterize copyright protection. By repurposing images from older works to express new beliefs about consumerism, politics, and society, the post-modern artist challenges notions of originality. A work of art can be protected by copyright if it is permanently affixed to a tangible medium and displays originality, but this new era of art forms is affixed in unconventional mediums and hence emerges the issues of copyrightability.

COPYRIGHT CONCERNS OF CONTEMPORARY ART FORMS

Appropriation Art:Utilizing pre-existing objects or images in art without significantly altering them is known as appropriation. In the visual arts, appropriation refers to effectively adopting, borrowing, recycling, or sampling parts (or the complete form) of human-made visual culture.

In the case of Rogers v. Koons, professional photographer Art Rogers captured a picture of a couple holding a bunch of pups in black and white. Internationally renowned artist Jeff Koons made a sculpture resembling the picture and named it “String of Puppies” for an exhibition with the theme of the banality of ordinary objects. Rogers filed a copyright infringement lawsuit against Koons after learning that his image had been duplicated. Koons acknowledged purposefully copying the image but tried to justify satire as fair usage. Koons’ concept was unique from Rogers’, despite the fact that his expression was not. Koons insisted that his work of art was both, a valid societal criticism and a satire. The ‘fair use’ criteria were employed by the court in this regard. The court added a good faith condition to its formulation of the commercial purpose test and considered the nature, purpose, and legality of Koons’s use of Roger’s photograph, which was protected by copyright law. Initially, the court determined that Koons’ usage was for profit rather than the public interest. Koons justified himself by claiming his art to be a parody and argued that he was commenting on how society is being brought down by materialism and readily available images. The court dismissed the parody defense, ruling that there had to be some element of parody in the copied work in order to justify bringing up the original.

Pop Art:By using imagery from popular and mass culture, such as advertisements, comic books, and mass-produced goods, the movement provided a challenge to the traditions of fine art. Its use of popular culture imagery in art emphasizes the banal or kitschy aspects of any culture, most frequently via sarcasm. In pop art, elements are occasionally visibly removed from their familiar/original context, isolated, or merged.

Installation Art:A type of art known as installation art consists of three-dimensional pieces that are frequently site-specific and intended to alter the way a space is seen.

In Kelley v. Chicago Park District, “Wildflower Works”—two sizeable elliptical flowerbeds lined with borders made of gravel and steel, and it was planted with a variety of native wildflowers. The garden was drastically altered by the Park District when it eventually started to deteriorate, which reduced its area significantly, turned the circular flower beds into rectangles, and changed some of the planting materials. Wildflower Works was ultimately determined by the district court to be both a painting and a sculpture, although it lacked sufficient originality to be protected by copyright.

A photograph of a bowl of Vietnamese food was deemed unprotectable by copyright laws in the case of Kim Seng Company v. J&A Importers, Inc., the court referred to the actual dish as a “food sculpture” but held that “because food is perishable, it cannot be considered 'fixed' for copyright purposes.

Such conceptual art frequently takes the form of an installation that may highlight the distinction between modern and classic forms of art. Conceptual artists produce works that might not be covered by copyright protection since they employ many materials and natural elements to make content. This can be due to the evolving/transient character of such artwork, which might not meet the “fixation” criteria of copyright.

ISSUES WITH CONTEMPORARY ART THAT BAR IT FROM RECEIVING COPYRIGHT PROTECTION

The conceptual art movement, which is part of post-modern art, questions ideas of creativity by embracing the idea as art rather than execution. This entire movement questions the principles of copyright law, such as the distinction between creativity and expression and idea. The idea that there is no distinction between idea and expression and that art can exist without any form at all as long as the creator has a mental conception is a complete rejection of copyright.

The underlying principle of a piece of work, such as the tale of two star-crossed lovers, is referred to as the “idea,” while the ultimate, literal expression, such as the play that relates the tale of the two loves, is referred to as the “expression.” ‘ When examining a work, courts will distinguish between the idea—the portion of the work that isn’t protected—and its expression. This division indicates a significant policy choice on which portions of work writers should be permitted to monopolize and which portions belong in the public domain, where anybody may build upon them.

Recent years have seen a rise in tension between intellectual property rights and modern art and design. Creativity and invention create jobs, advance the nation’s economy, and provide a foundation for future growth. Then why do such creative works of art and design not get IPR protection? Some of the causes include the following:

  1. Contemporary art and design are more about ideas than about expressing the same. The actual means of expression are irrelevant; what matters is the idea behind the production. With their work, artists attempt to define and express themselves, fusing traditional and contemporary forms of art. Though ideas cannot be protected by copyright, the expression of such ideas can.
  2. If such contemporary artworks are acknowledged under the IPR, the moral rights provided to the first creator or inventor can be questioned. In order to avoid unauthorized exploitation of a creator’s work, the author is guaranteed some basic rights. When modern art and designs that reinvent classic works with fresh concepts and ideas are accepted, the issue of what happens to the rights of the original author becomes contentious. It highlights the issue of trademark or copyright infringement by creating a dichotomy between the two rights of the past and current inventor.
  3. Another aspect to take into account is the effect on the potential market. When a creative or inventor invents something novel, their work is protected against exploitation, and they are compensated with royalties whenever their invention is used for commercial gain. The question that should be asked is What would happen to the market share if the creation of modern art and design were protected, questions like how clients would react to such a move and whether it would cause confusion need to be taken into account.
  4. Copyright does not safeguard the creator’s ideas, so current artists’ and designers’ attempts to get copyright are a little risky. Also, the expression must be precise and not arbitrary, yet modern art and designs are not precise equations; rather, they depend on the interpretation that the viewer assigns to them.

CONCLUSION

The current Copyright Laws do not provide sufficient protection for the majority of post-modern art pieces. Nonetheless, this is not the product of deliberate and voluntary bias. The definition of art is nearly endlessly expanded by conceptual art and appropriation art. On the other side, a functional statute demands restrictions. For administrative reasons, art must by definition be constrained. In order for protection to have some meaning, art also has to be defined by limitations. Everything may become protected art if the Copyright Act were to be extended to the outer reaches of post-modern art, as is the case with the copyrightability of ideas. Alternatively, nothing could be safeguarded, as in the case of allowing artists who use appropriation to take credit for other people's works for as long as they want. Therefore, there is a urgent need to re-evaluate Copyright laws, to adequately and appropriately protect the contemporary art form.

References:
  1. Rogers v. Koons, (1992) 960 F.2d 301 2d Cir.
  2. Kelley v. Chicago Park Dist., (2011) 635 F.3d 290 7th Cir.
  3. Kim Seng Co. v. J & A Importers, Inc., (2011) 810 F. Supp. 2d 1046 C.D. Cal.
Author:

* Shreyanshi Singh
4th year Law Student, Alliance School of Law, Bangalore.

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.