THE PROTECTION OF CONTEMPORARY ART UNDER UK COPYRIGHT LAW.

Author:Francis, Chloe
 
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INTRODUCTION

Copyright law is inextricably linked to the arts. It provides the legal framework for their ownership, protection and exploitation. Under the Copyright, Designs and Patents Act 1988 (CDPA 1988), copyright arises automatically on creation of original literary, dramatic, musical and artistic works (1) and confers protection against their unauthorised reproduction and subsequent exploitation, including distribution (2) and online communication to the public. (3) Importantly for artists, copyright provides entitlement to resale royalties (4) and protection of their 'moral rights' which principally give them the right to be credited where their work is displayed or published (5) and the right to object to derogatory treatment of their work. (6) However, despite this, what is protected by copyright does not necessarily mirror what society considers 'art' or otherwise finds culturally important; it is a legal and normative construct.

Although there are no formal criteria for copyright protection, it is clear that the work must be of a relevant kind, (7) an expression rather than an idea, (8) original (9) and, in some instances, fixed. (10) These elements serve a necessary role in ensuring that copyright law has identifiable boundaries, but, beyond their legal function, they reflect the normative construction of modern copyright law: an adherence to a "nineteenth century approach of art being representational and figurative in nature". (11) While these ideals are concurrent with traditional forms of art, which are normatively well-defined and appreciable to not only the masses but legislators as well, the underpinnings of copyright law do not seamlessly fit within some contemporary artistic practice. Although contemporary art is broad and undefinable (12)--it is more akin to a movement than a type of art (13)--when considered within the ambits of the normative notion of 'art', one can ascertain its distinguishing feature: it is a resistance movement that questions, re-evaluates, and experiments with 'art'. However, despite the friction between the nature of contemporary art and copyright law, contemporary art is nonetheless dependent on copyright as it not only provides basic protections against copying and other exploitation but also delineates the legal limits of artistic practice. (14)

Analysis of the level of protection contemporary art receives is necessary because, despite its cultural importance, contemporary art lacks the respect that 'fine art' enjoys, making it susceptible to harm and exploitation. For example, there are many instances of contemporary art 'inspiring' commercial advertising campaigns. (15) Although these instances may not constitute copyright infringement, as arguably only ideas were taken, (16) they nonetheless create a body of evidence of the susceptibility of contemporary art to unauthorised exploitation. Additionally, forms of contemporary art, such as readymades, are particularly "vulnerable to destruction". (17) One only has to look at Joseph Beuy's Bathtub being scrubbed clean of its greasy lining by a museum employee or Gustav Metzger's Recreation of First Public Demonstration of Auto-Destructive Art being thrown into the rubbish. (18)

This paper will evaluate the application of copyright to two important forms of contemporary art: readymades and appropriation art. Readymades, an extreme form of conceptual art where the artistic value lies in the underlying ideas rather than the art-object, raise questions of whether copyright can even subsist. Appropriation art, which appropriates and incorporates the works of others to create new works, raises similar questions of subsistence, but the greater issue lies in whether any competing copyright in the works appropriated undermines the level of copyright protection afforded to appropriation art. Although readymades and appropriation art are very particular forms of contemporary art, analysis of the two will dissect the key cruxes of copyright law; through these two foci, this paper provides a reference point for consideration of other types of contemporary art, such as assemblages or minimalist art. Nonetheless, because of the breadth of contemporary art, not every issue relevant to contemporary art is addressed. This analysis cannot be and is not global.

Moreover, UK copyright law has developed dramatically in recent years owing to significant attempts at harmonisation by the Court of Justice of the European Union (CJEU) coupled with the natural evolution of domestic case law. As such, the body of literature regarding the relationship between contemporary art and copyright law--which was already limited due to the niche subject matter--largely precedes these developments and has correspondingly diminished in relevance. Therefore, this dissertation provides novel analysis that attempts to fill, in part, this lacuna in the legal literature. It should be noted that despite a notice issued by the European Commission that following Brexit the "EU rules in the field of copyright will [not] apply to the United Kingdom", (19) there will nonetheless be discussion of EU law as it could continue to be relevant; however, the notice renders discussion of the current contentious (20) status of the adoption of EU law by UK courts soon-redundant and unnecessary.

Part I discusses whether copyright can subsist in readymades, taking into account the traditional UK approach and the new EU influence. Part II examines how copyright applies to appropriation art in relation to both copyright subsistence and the scope of subsequent protection.

  1. READYMADES

    Readymades are everyday, often manufactured objects that have been elevated to the status of art. (21) Underpinned by Dadaist ideals, (22) readymades displace the importance of the physical art-object in favour of its symbolic significance or underlying ideas. Their effect is a questioning of and a challenge to traditional notions of 'art'. (23) Readymades serve as anomalous subject matter for copyright protection as they dissolve any distinction between idea and expression, which contradicts copyright law's dichotomous approach. Moreover, readymades challenge the causal relationship between author and work that is foundational to copyright.

    There has been little academic consideration of the application of copyright to readymades: what literature does exist is superficial, (24) unsubstantiated (25) or reflective of an overly idealistic conflation of a desert of cultural recognition and a desert of legal protection. (26) The only indepth analysis, undertaken by Cheng, was written prior to the substantial developments in copyright law referenced above. (27) Nonetheless, Cheng's conclusion that UK copyright law cannot protect readymades remains correct.

    This Part explores why copyright cannot subsist in readymades by applying both UK law, which requires that there be a 'work' and that 'work' be original, and new CJEU case law, which requires only originality for copyright eligibility. The CJEU has taken notable steps toward harmonising the requirements for copyright subsistence even though the InfoSoc Directive, (28) by which the UK is bound, primarily focuses on the rights granted by copyright and any exceptions to them. Nonetheless, as the Court frames these principles as preconditions for protection under InfoSoc, (29) its decisions are liable to vary UK copyright law.

    Readymades require unique consideration of the points of protection; therefore, this analysis considers both the readymade qua object and the readymade qua idea to provide a robust understanding of the position of readymades under copyright law. Although the underlying ideas are the artistic focus of any readymade, ensuring protection of the object is vital too. Whereas protection of readymades qua ideas could, in theory, prevent other artists from presenting the same object as art, protection of readymades qua objects would preclude the exploitation of copies, principally photographic copies.

    (a) Work

    The notion of'work' is central to UK copyright law as it is the locus of protection. (30) However, 'work' as a legal construct is not the same as the similarly normative concept of 'work of art'. Therefore, although the art world readily recognises readymades, (31) that recognition is not indicative of copyright eligibility. Analysis of whether there is a 'work' is two-pronged. First, there needs to be consideration of whether there is an expression. Second, the work needs to fit squarely within the types of works prescribed by the UK copyright framework, which is constructed to recognise only works that fall within its taxonomy.

    (i) Is there an Expression?

    'Work' is built off of an assumption that there is an expression. Although the word 'expression' is legally undefined, (32) its judicial treatment reveals that it is a matter of tangibility. Farwell J. stated in Donoghue v. Allied Newspapers that there must be "some tangible form" for copyright to exist, (33) and this was later echoed in the Court of Appeal's decision in Ladbroke, (34) which was subsequently affirmed by the House of Lords. (35) Although both cases considered expression in relation to literary works, the principle established is universal. (36) This conclusion from case law is supported by a consistent academic conflation (37) of expression with fixation, the requirement for literary, dramatic and musical works to be recorded in some form. (38) As Rahmatian argues, this conflation is wrong because expression and fixation are distinct concepts, the former relating to determinations of 'work' and the latter being a separate requirement for copyright eligibility--though, it should be noted, not for artistic works. (39) Nonetheless, the conflation of the two underscores the interdependency of expression and tangibility: without tangibility, there is no expression. Moreover, academics have described the tangibility needed for expression as a...

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