Dawn Ellmore on intellectual property and contemporary art
In a world where it can be difficult to ensure art gets the recognition it deserves, intellectual property (IP) law is integral to protecting the rights of the original artists.
Conflict in contemporary art
In contemporary art, IP law is particularly complicated. As contemporary art often constitutes reworking or existing works of art, this causes conflict with legal rights. At which point does the legal right of one artist end, and the right of another artist begin?
‘Substantial similarity’ examines the degree to which the art has been borrowed. If the artist that has reimagined someone else’s work has produced art substantially similar to the original work, then the rights should perhaps be restricted.
History of art copyright
The Engraving Act of 1734 first legally recognised the economic value of art works. Later on, the Berne Convention of 1886 included ‘moral rights’, such as the right to attribution. However, the art world has expanded over the years and it has become ever more difficult for the law to differentiate what is considered an artistic work, and what isn’t.
For a creative work to receive copyright protection it must come under the categories set out in Section 4 of the Copyright, Designs and Patents Act 1988 (CDPA). These are: “literary, dramatic, musical and artistic works; films; sound recordings; broadcasts; and typographical arrangements of published editions”. However, many contemporary works of art don’t fit neatly into these categories.
The CDPA s4(1) does say that graphic works, sculptures, photographs and collages are considered artistic works ‘irrespective of artistic quality’, which means judges can’t apply a value judgement when deciding whether something is ‘art’.
Digital and other forms of artwork
Currently, digitally created images can only be protected as ‘artistic works’ if they can come under the categories of ‘painting’ or ‘drawing’. Installation art and found objects, while a huge part of today’s contemporary art scene, have no legal recognition, unless squeezed into the ‘sculpture’ category.
In the UK there are three moral rights relevant to artistic works:
· The right to be identified as the author.
· The right to object to derogatory treatment of the works.
· The right against false attribution.
However, while copyright (pertaining to the economic rights of the art work) does not need to be asserted or registered, moral rights in the UK do. This can cause problems for artists who simply don’t know they need to formally register to gain the right to be identified as the creator of their artwork.
About Dawn Ellmore Employment
Dawn Ellmore Employment was incorporated in 1995 and is a market leader in intellectual property and legal recruitment.