Art Collaboration and Authorship Issues
Art is not always a one-(wo)man show, although creating art has been romanticised as the brainchild of one particular author/creator. Art, and its various expressions, often result from teamwork and involve multiple parties working together with a shared aim to build a final product. Collaboration is a key aspect of what artists do. There have been numerous collaborations between artists over the years.
Joint authorship
Art collaborations seem to remove the weight of sole creation from a single creator (or author) and distribute it between all collaborators, making the process simpler and less onerous on all parties. However, when it comes to each party’s respective rights in the collaboration, the process becomes less and less simple. Copyright law recognizes that multiple people have a part to play in collaborative works, which gives rise to the concept of joint authorship.
Looking at a few definitions of works of joint authorship across the globe would help understand its relevance in an art collaboration. The Berne Convention, one of the oldest international agreements governing the protection of copyright, does not even attempt to define works of joint authorship. This decision is left to the countries who are party to the Convention, thereby depending on each country’s respective national laws. The European Union follows the same approach giving each Member State the authority to decide on the particulars of joint authorship. The U.S Copyright Act cuts straight to the chase by emphasising the intention of authors to contribute to a work where their ‘contributions are merged into inseparable or interdependent parts of a unitary whole’. Both Indian and British Copyright Acts stress on the collaboration between authors to create a work where each ‘author’s contribution is not distinct’ from others’. Art collaborations are outstanding examples of works of joint authorship because all of the conditions are satisfied:
i. Two or more artists collaborate together, i.e. the authors;
ii. Their intention is to create the collaboration, which is a work(s) of copyright;
iii. Each artist’s contribution is not distinct from the other’s, i.e., the collaboration is viewed as a whole and not a separate expression by each artist.
How does one become a joint author ?
According to a judgement rendered by a UK court, a participant to the creation of a collaborative work does not become a joint author by merely providing suggestions and helpful criticism. As the issue of joint authorship is complicated (the work in question was a screenplay), this case went through a re-trial. For a contributor to a collaborative work to rise to the title of a joint author, it is essential that their contributions play a significant role in the creation of the work, and for this, the skills that the contributor used play a decisive role.
What should collaborating parties look out for?
Since the creation of a collaborative work is often a messy affair as far as rights are concerned, drawing out a collaboration agreement setting out each one’s responsibilities and rights over the work should be high priority. Such an agreement should, at the very least (for a more detailed overview, see here), set out the expected contributions from each of the parties, how the copyright would be divided between them, the compensation each party is due and contingency plans if parties fail to deliver their promises.
What about commissioned projects?
Commissioned projects are different from art collaborations in the sense that a party commissions the project, bringing together different parties to create a copyrightable work with the intention to exercise control over the final product. The issue of authorship and rights becomes much more complex because, not only are there multiple persons making copyrightable contributions, but there is now a commissioning party with an interest in the rights in the final product. The U.S recognizes this situation and provides a statutory solution called ‘work for hire’, where the commissioning party can contractually bring contributors together to create the work and then exercise control over the final product, like its author. Similarly, the U.K. also accepts that a commissioning party can be the owner of such a work, if both the commissioning party and the creator agree to it in writing.
What happens when an artist’s masterpiece is used as another’s tool?
As mentioned previously, most of the art we see today is a result of joint efforts by multiple parties and an essential element here is that all the contributing parties are consenting to work together and agree to the use of their works for a certain purpose. Unfortunately, there may be cases where existing pieces of art are used by later artists without the permission of the original artist.
An acclaimed (or not) work of art may function as the backdrop for another artist to build on to create the next monumental piece, like Andy Warhol created the Marilyn Diptych. The original creators may not even know that their work was used, much less receive their share of rewards when a new artist puts a spin on an existing piece of work and it becomes a commercial success. There are several copyright issues at play in such cases, such as derivative works, questions of authorship and the most serious one, the threat of infringement litigation, where the first artist, the original creator, does not receive any compensation for the use of their works. Often such uses come under the few exceptions to the exclusive right of copyright, aiming towards public interest and well-being. However, that is a topic for another article, and it may even need a discussion on fair use of works under copyright protection.
Upgradeable NFTs may provide a solution here. The artists and authors get to retain distribution and reproduction rights over their works, while collectors may be able to use them as a basis for creating new works. Here, the collaboration could be happening at different levels and at different stages in the creation of the art, maybe even after the initial artist has finished. Everything is done with consent. The original artist retains control and gets to decide which copies of NFTs are upgradeable by others who want to collaborate.
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