Copyright Protection for Artistic Works: the Challenges Posed by Conceptual Art - Essay Example

Copyright Protection for Artistic Works: The challenges posed by conceptual art Introduction Conceptual art has emerged as a prominent and often controversial aspect of post-modernist expression. In this area, the boundaries between 'art' as original creative works of painting, sculpture, literature, or music are entitled to copyright protection, and non-original and non-copyrightable 'objects' are blurred to the point of being indistinct (Derclaves 2009, p.239). The controversies have been fuelled by assorted examples that span multiple legal jurisdictions. In most instances the issues associated with conceptual art copyright protection can be distilled to these questions: To what extent does copyright subsist in a conceptual art work? How does copyright asserted over conceptual art promote the traditional 'idea / expression dichotomy' fundamental to the protections permitted by legislation such as the UK Copyright Patents Design Act (CDPA)? How important is originality in conceptual art when the artist's effort to achieve the created work may be minimal? Does the legal system truly understand 'art' well enough to determine the appropriate ambit of copyright protection? (Hargreaves 2011, p.1). These questions are addressed in the three part analysis that is advanced in this essay. In Part One, copyright and conceptual art are defined. The particular problems associated with copyright protection when extended to conceptual art are discussed in Part Two; specific reference is made to examples from the UK, the United States, and Germany. It is evident that as the questions concerning the legal protection to be afforded conceptual art are ones of global importance, an analysis extends across several jurisdictions is the most appropriate and comprehensive. The conclusions presented in Part Three include a brief discussion of the future of conceptual art copyright. The conclusion that is driven by the analysis is that such copyright protection must be carefully examined case by case, given the boundaries and definitional difficulties identified here. Part One: The definitions 1. Copyright In the United States copyright is seen as some form of legal concept, which is created by governments, to give owners of original works protection against illegal reproduction of their works, and also offers the creators total rights of ownership, but within limited time span. In the United States, this protection is offered within “Title 17, US Code.” It majorly covers “original works of authorship,” which has to be presented in a tangible medium. This protection recognizes original creations right from the time they are made and presented in these tangible forms, and it does not matter whether or not the work is published. It also does not matter whether or not the work is registered at the copyright office (Visual Arts Rights Act (US) 1990). However, this protection is only guaranteed if a work meets some prerequisites. The first of such perquisites is that this work must be presented in a medium that permits the audience to see, read, or hear the creator’s expressions. This may be done directly or through a machine. Secondly, the artist must prove beyond any reasonable doubt that the work is their original creation. The novelty of the work must be directly associated with the artist. Finally, the work must portray at least a bit of creativity, especially on the part of the artist. Creativity is very mandatory because one of the main objectives of copyright law is to enhance creativity among artists. Therefore, it is the little expression of creativity that the law is seeking to build (Visual Arts Rights Act (US) 1990). The Berne Convention and the national copyright regimes that have followed it each strive for the same objective. Copyright protection is best understood as the optimal balance between the limited monopoly granted to creators of artistic works to ensure that the creators profit from their labours, counter-weighted by the fear that a more expansive monopoly will discourage the legitimate creation of new art forms on the foundation and inspiration provided by existing copyrighted works (Berne Convention for the protection of Literary and Artistic Works, 1886). The CDPA definition of 'artistic work' is consistent with that of most Western jurisdictions; two elements of the definition are central to the degree of protection that ought to be afforded to conceptual art. Copyright attaches to creative products that are: (i) Graphic in nature, or photographic, or even a sculpture. This is in disregard of the work of art’s quality. (ii) The work needs to be of at least some craftsmanship associated with arts. (Copyright Designs and Patents Act (UK), 1988). The case law confirms that the seemingly 'plain English' terminology employed in the CPDA can prove problematic when conceptual art concepts are at issue. The definition of 'sculpture' includes a cast or model made for the purpose of creating the final sculpted work (Visual Artists Rights Act (US), 1990). Lucasfilm Limited v Andrew Ainsworth establishes these criteria to determine whether an object is a sculpture capable of CPDA protection: look to the normal "dictionary meaning" for a sculpture; this meaning is not conclusive, but do not stray too far from what would "normally" be regarded as sculpture; the object's artistic merit is not considered. This vague judicial pronouncement on what constitutes sculpture reinforces the circumstance driven nature of the case law that has considered any aspect of the question, "Is it art"? (Dewitt, 1967, p.16). This sentiment is echoed in the cases that have considered the 'artistic craftsmanship' element of the CPDA, a phrase that was left undefined in the legislation. George Hensher Ltd v Restawhile Upholstery is a leading authority for the proposition that copyright protection will depend on (a) a degree of aesthetic appeal (b) expert evidence regarding the place of the work in the artistic realm (i.e. how is it categorised, if at all), and (c) the intention of its creator. Supporting documents that aided in the creation of the work may also attract CPDA protection (Tushnet 2007, p.5). Hensher is cited in the interesting 1986 case of Merlet v Mothercare Ltd. The claimant designed a cape to protect her child whilst on holiday; the court noted that Merlet "… She was fully aware of what she needed something attractive to the eye, since she was purposefully taking it for herself, and not to get any financial gain from it." The commentary provided on Merlet by Bowrey is instructive. She suggests that Merlet failed in her action not only because of the status of art, but also that of commerce, especially when it is put side by side with “women’s work” (qtd in Meyers 2006, p.221). The examples cited in Part 2 underscore the importance of the key CPDA phrase which places very little emphasis on the artistic quality. Copyright protection does not depend on merit, real or perceived, nor does the acceptance or rejection of a piece as worthy of acclaim by art critics or the broader community determine its copyright status (Lippard 1973, p.300). The essential requirement provided in the CPDA and similar regimes is originality. With the traditional art forms contemplated in the CPDA definition, the development of an original artistic concept from inspiration to finished work presumed the expenditure of specialised skill and effort by its creator. It is on this point that much of the performance art controversy has been sparked (Bowrey 1994, p.289). 2. Conceptual art According to Sol Lewitt, in a conceptual artistic work, a lot of importance is placed on the concepts and ideas in the work. As such, in this kind of work, traditional aesthetics as well as the work’s material concerns are of secondary concern. It actually functions to explore the natural dynamics of art. He says that conceptual artists’ planning and decision making are carried out anticipation of its successful execution. The idea within the art is what eventually gives life to that art (1967, p.1). Conceptual art tends to attract a lot of controversy. Those who love it want others to acknowledge its role in extending the scope of art, especially considering the fact that it is not as commercialized as other forms of art. However, those against it see its supporters as pretenders who are also motivated by the work’s economic values yet want to believe otherwise. It is a movement which can be attributed to Marcel Dunchamp, who was the first of his peers to question the kind of values attached to the art world. But this movement only received recognition towards the end of 1960s, after which it rapidly spread and developed to become what it is today. Unlike what most people have tried tom claim, including both supporters and detractors of conceptual art, just like any other form of art, conceptual art has been found to contain a huge commercial value. This form of art is available in various forms, ranging from self instructions to photographs and video clips (Dunchamp 1957, p.1). The CPDA definition of an artistic work is relatively broad by conventional legislative standards; its terms appear rigid and unyielding when the often amorphous conceptual art counterparts are considered (Derclave 2009, p.238). DeWitt, a noted early conceptual artist whose works were presented for public display in the mid 1960s, offered an assessment similar to that of Sol Lewitt: The idea or the concept forms a work’s most important part. Their decisions majorly depend on prior planning to make work easier when it comes to execution (DeWitt, 1967, p.9). The DeWitt definition is suggestive of the philosophy of the Bauhaus school that rose to prominence in Germany after WWI, where new works were Bauhaus created through the merger of art and industrial design (qtd in Pedley 2005, p.1). Whether conceptual artists are placed within the bounds of a formal 'school', in the conventional art sense, or as a less-confined 'movement', the title of conceptual art originator could be legitimately claimed by several of its proponents who rose to prominence in the 1960s (Dewitt 1967, p.12). In addition to DeWitt and Joseph Kosuth in the UK, French artist Marcel Duchamp exerted profound influence on the early direction of conceptual art. In an opinion that anticipated performance artists such as Beuys a decade later, Duchamp observed that ignoring the contribution of the audience in performance art is quite unfair. An artist cannot perform in vacuum, or to objects, but to an audience, whether active or passive. It is true that the artist is the main source of attraction, but their work will seldom get in touch with the world outside the performance without the help of their audience. It is the audience that absorbs the ideas from the performance, and later relate the ideas to the real life situation. This is indeed a role too important just to ignore (Duchamp 1957, p. 1). It is the interactive relationship between creator and audience that has been reflected in the genre history since. Schellekens approached the problems associated with the conceptual art definition from a philosophical perspective; she notes that determining the scope of conceptual art is not an easy task. Harder still is to clearly draw a line between not only conceptual artists and those who are not, but also the line between works that qualify to be conceptual art and those that do not. She strongly feels that in reality, conceptual art is a work that has been perfected by very few individuals, but within a very long period of time (Schellekens 2011, p.1). She acknowledges that when examined from a different perspective, conceptual art actually presents itself as one of the main corner stones that have successful helped in making the past to smoothly translate into what we have today (p.1); in other words, the 'art' is nothing more than derivative or repurposed ideas and expressions that fail the conventional copyright tests. Bainbridge provides a careful assessment of the definitional issues prompted by conceptual art in the context of copyright protection. He observes that there is little question that are original work of sculpture will meet the CPDA 'artistic work' definition because it is made by a person recognised as an artist (2010, p.97). In contrast, where an object is created by the expenditure of intellectual effort to reverse engineer diagrams, the 'art' designation is not available to the product created (Davies 2008, p.113). For Bainbridge, these definitional problems are heightened when computer programmes and digital works are considered. He argues that the notion of craftsmanship as it is expressed in the CPDA definition ought to be the measure by which otherwise 'ordinary' objects employed in conceptual art are elevated to protected legal status (2010, p.98). In the commentaries that struggle with the interplay between conceptual art in the copyright context, there is an unmistakeable element of the mentality that can be summarised as "I don't know art, but I know what I like" (Copyright Designs and Patent Act, 1998). This observation is reinforced in the cases discussed in Part Two. Part Two: Examples Three examples of copyright decisions involving conceptual art are noted in this Part. Special emphasis is placed on these decisions because they are relatively recent pronouncements on where the boundaries between copyright protection of an art work and unprotected objects or concepts are drawn. Kelley v Chicago Parks and Blanch v Koons are US decisions that also engage questions of 'moral rights' claimed by rights holders over their prior art (Schellekens 2011, p.1). Bild-Kunst is the recent German decision regarding the copyright associated with the work of Joseph Beuys, noted performance artist (Stokes 2003, p.52). The overarching questions cited in the Introduction that frame the analysis are brought into their clearest focus in these cases. 1. Kelley and 'wildlife art' Kelley is a prominent American artist. In 1984 he had designed a 66,000 ft? park, known as the CWW on the Chicago city waterfront where the prominent features were its flowers, pathways, and a series of environmentally sustainable features, such as reduced watering and maintenance requirements. In 2004, the defendant Chicago Park District removed the park and effectively destroyed the plantings and other elements of the design as implemented by Kelley. The judgement describes the park as a place with mere organic as well as inorganic elements, and whose plants were only those available locally in Illinois, but beautifully arranged in between small stones and steel banding. The CWW required virtually no maintenance from the municipal authorities; no insecticides or fertilizers were used in its upkeep.  The CWW was maintained until 2004 by volunteers who worked under the direct supervision of Kelley.  A notable CWW feature was that the park plants continuously bloomed in sequentially fashion for three seasons every year.  Kelley commenced action on the basis that his copyright over the park as an artistic work was violated by the Chicago decision to remove it from the waterfront; he also claimed that his 'moral rights' as protected by the Visual Artists Rights Act (Kelley v Chicago Park District, 2011). The 7th Circuit Appeals court decision is a highly instructive example of the difficulties judges encounter when they endeavour to place 'new age' artistic expression within the traditional boundaries of copyright law. The Court held that the CWW Park was not an authored work and also that it was not in any way fixed. As such, it did not meet the basic requirements for copyright, meaning that it could not get moral rights protection as outlined in the Visual Artists Rights Act. In addition, Wildflower installations could not be protected under copyrights law since they were neither a sculpture nor a painting. They would have only qualified if it would have been possible to prove beyond doubt that they were really the two (Kelley v Chicago Park District, 2011). The Court determined that the main obstacle in according Wildflower Works was not stemming from its originality issue, since it was clearly original and was creative in nature. However, since it was a living garden, its authorship did not meet the requirement for copyright. Moreover, its fixation was also seriously questionable. The Court concluded that such works do not receive moral-rights protection if the artist understood at the time that the work was installed on public land and that it was subject to removal as determined by the municipal authorities (Tushnet 2007, p.4). It is noted that the VARA supplements the copyright; the moral rights protected only apply to copyrightable works at first instance (Lipton, 2010, p.6). It is suggested that copyright takes on an unforeseen (and arguably untenable) dimension if an artist is permitted to assert moral rights in preference to municipal decisions concerning how its public spaces are utilised (Meyer 2006, p.219). 2. Joseph Beuys In 1964 Beuys delivered an impromptu performance that was captured in 19 photographs taken by Tischer, a photographer; there was no script, given the nature of the performance. A museum presented the photographs as an exhibit: VG Bild-Kunst, the German artists' copyright collective commenced action against the museum alleging a violation of Beuys copyright (now owned by his widow) over the impromptu performance (qtd in Lydiate, 2011). Lydiate observes that in most countries, original works of creative artists qualify for copyright protection only if exist in a material form. Beuys's improvised performance was, however, not fixed, but still qualified for not only copyright but also moral right protection. As such, it had been declared that the showing of the 19 freeze-frame-like photographs (a work done by Tischer) was a totally illegal imitation of the whole work. The German decision is a landmark ruling that extends copyright and moral rights in a fashion that the Kelley decision regarding visual art does not contemplate (Lydiate 2011, p.1). 3. Blanch v Koons Koons, an American visual artist, has used photographs and other images displayed in the mainstream media to assemble photographic and multi-media collages that he presents as his original art. A photograph originally taken by Blanch was subsequently used by Koons in a display that he exhibited in various public locations. Blanch commenced action for copyright violation; Koons had been the subject of other actions where it was alleged that he had misappropriated the copyright of another artist through the collage produced (Blanch v. Koons, 2005). In the present case, the Court determined that it was the "transformational" nature of the Koons collage that rendered it a 'fair use' of the earlier Blanch photograph. The Second Circuit determined that courts will not declare one guilty of unlawful reproduction of an original work if the subsequent work has been presented in a way that shows a totally new way that use the creativity present in the original work. In the present case, the collage passed the transformative test “almost perfectly”; (Marques 2007, pp.331-332). Koons altered the original copyrighted photograph in that there was use of different colours, use of a different background for the works layout, a changed size, and use of totally different details. The Court concluded that the collage had exhibited a totally different purpose as well as meaning (Marques, 2007, p.337). It is the court's reliance on the concept of transformation that provides Koons with its intellectual spark. This specific element is discussed further in the conclusions presented in Part Three. Part Three: Conclusions The cases and commentaries noted in Parts One and Two lead to this inexorable conclusion – what is the defining essence of conceptual art as copyrightable material? Is it intention of its creator to make art, or is the reception of the work by the audience as art the determinative? The blanket acceptance of all forms of conceptual art under copyright protection has significant risks. There is an implicit arrogance in the artistic mindset that is suggested in this unattractive attitude: Artist can display anything they choose to, in public, and it still qualifies to be an artistic expression (Hargreaves, 2011, p.1). It is on this point that the Koons 'transformational' test has significant appeal; it is endorsed as a useful means to distinguish between legitimate artistic expression that deserves copyright protection, and merely derivative works that are devoid of the skill, effort, craftsmanship, and creativity (whether praised or panned) that defines an original work (Marques, 2007, p.342). Where the works uses derivative materials in a manner that alters their original character (as Koons achieved with his collage), it is a logical extension of copyright law to protect the work (Marques 2007, p.351). It is concluded that where an artist has merely assembled objects in a way that they and others may find pleasing, the artist's attitude to their work should not be determinative of its copyrightable status. As with Kelley's wildflowers, the assemblage may be artistic, pleasing to the eye, and a public asset – but these characteristics are not necessarily the basis for copyright (Kelley v Chicago Park District, 2011). Basing on the above conclusions, and especially on the ruling in Kelley v. Chicago Park District, one is left to strongly believe that the future of conceptual art is very unpromising. The decision leaves other forms of conceptual art exposed to illegal imitation and plagiarism of ideas since it clearly shows the limitations of law in protecting conceptual art. It is crystal clear that the decision goes against Bleistein’s principle, which protects artists against any form of discrimination as protection of intellectual property is concerned. The decision has made it clear to everyone that the law does not regard any form of not only economic but also moral rights attached to conceptual art. It also makes it obvious, for any sane person, that copyright law puts a relatively expansive value on some other ancient art works. Unfortunately enough, this is what Justice Holmes had tried so much to avoid in Bleistein (Davies 2008, p.109). In addition, we all realize that copyright still has a long distance to cover in its attempt to reach its super objective of enhancing creative forms of expression. From time immemorial, and in other forms of creative arts, one of the main motivations to create has been the economic incentives attached to such art. Moreover, some other people tend to feel motivated to be creative due to the moral rights that come with these forms of expression. As such, it is very obvious that detaching conceptual art from economic and moral rights will only serve to kill this same creativity that the copyright has worked so hard to enhance (Copyright 101, p.1). There is a general feeling that the copyright law has seriously contributed to the dematerialisation of conceptual art. This has in turn fuelled some serious legal challenges, especially concerning how a conceptual artist should define their art, and move on to consequently protect the work from plagiarism and piracy. It is relatively true, though unfortunate, that the copyright law has added more stumbling blocks on the conceptual artists’ way to protecting their works from unauthorised, if not illegal, reproduction by others who are out to reap where they have not sown. The dematerialisation of conceptual art leaves us wondering who exactly should benefit from these rare forms of art. It also leaves us wondering who exactly should have legal rights over these artistic creations. I somehow feel hopeless and helpless, as if I were among the few conceptual artists, who have of late abandoned the works they know best to venture into other forms of art with minimal legal hustles, especially when it comes to rights protection (JETLaw: Vanderbilt 2011, p.1). If the conceptual artists have little say in their works when they are still alive, what is the possibility that these works will survive them once they die? It may sound light, but the future of conceptual arts is seems to be very uncertain if not dim. To save the situation, the earlier legal decisions should be revised to offer flexibility while dealing with conceptual art. It is only through reconsideration of earlier rulings that conceptual artists will gain at least some motivation to continue creation this unique form of art. Bibliography 1. Authorities Bainbridge, D 2010, Intellectual Property, 8th Ed., London: Pitmans, pp.97-98. Bowrey, K 1994, Copyright and the paternity of artistic works, and the challenge posed by post-modern artists. Intellectual Property Journal, Vol 8, no 3. pp 285, 289. Conceptual Art (2011). Web. 4 Jan. 2012. Copyright 101: What is copyright? Web. 4 Jan. 2012. . Davies, G 2008, Copyright Law for Artists, Photographers and Designers: Essential Guides. London: A & C Black. pp.109, 113. Derclaye, E 2009, Research Handbook on the Future of EU Copyright. Cheltenhum, UK: Edward Elgar Publishing. pp. 238-239. DeWitt, S 1967, Paragraphs on Conceptual Art. Artform. pp. 9, 12, 16. Duchamp, M 1957, Session on the Creative Act. Convention of the American Federation of Arts. Texas: Houston. P.1. Hargreaves, I 2011, Digital Opportunity: A Review of Intellectual Property and Growth. Web. 4 Jan. 2012. < http://www.ipo.gov.uk/ipreview-finalreport.pdf> Lippard, L 1973, Six Years: The Dematerialization of the Art Object 1966-1972. New York: Praeger, pp, 300-302. Lipton, J.D 2010, Copyright’s Twilight Zone: Digital Copyright Lessons from the Vampire Blogosphere. Maryland Law Review, Vol 70, pp.6. Lydiate, H, 201, Performance Art. Web. 4 Jan. 2012. Marques, J.M. 2007, Fair Use in the 21st Century: Bill Graham and Blanch v. Koons. Berkeley Tech. L.J. Vol 22. pp 331, 332, 342, 337, 351. Meyers, E 2006, Art on Ice: The Chilling Effect of Copyright on Artistic Expression. Column J.L. & ARTS, Vol 30. pp 219, 221. Pedley, P 2005, Digital Copyright. Facet Publishing. P.1. Schellekens, E 2011, Conceptual Art. Stanford Encyclopedia of Philosophy. Web. 4 Jan. 2012. Sol Lewitt 1967, Paragraphs on Conceptual Art. Web. 4 Jan. 2012 . Stokes, S 2003, Art and Copyright. Oxford: Hart Publishing, P.52. Tushnet, R 2007, Payment in Credit: Copyright Law and Sub cultural Creativity, Law and Contemporary Problems, Vol 70, pp.4-5. Uncertain Future for Conceptual Art 2011, JETLAW: Vanderbilt Journal of Entertainment and Technology Law. Web. 4 Jan. 2012. Legislation Berne Convention for the protection of Literary and Artistic Works 1886 (as amended). Copyright Designs and Patents Act (UK) 1988. Visual Artists Rights Act (US) 1990. 3. Cases Blanch v. Koons, No. 03 Civ. 8026 (LLS), S.D.N.Y., November 1, 2005. George Hensher Ltd v Restawhile Upholstery (Lanes) Ltd [1976] AC 64. Kelley v Chicago Park District Nos. 08-3701 & 08-3712 7th Circuit, United States Court of Appeal, February 15, 2011. Lucasfilm Limited and other v Andrew Ainsworth and another [2008] EWHC 1878 (Ch). Merlet v Mothercare Ltd (1986) RPC 115. Read More