Nearly Legal

For reasons unconnected with work, I have been taking a stroll through IP law lately, particularly copyright. As I mentioned before, my previous career was art related and, although I knew something of the history of copyright, I have been struck by what seems to be a fundamental incompatibility between contemporary art practices and copyright statute and case law as it applies to art. (By art, I mean what were once called the plastic arts, or sometimes visual art, and is now just Art – best defined by what it isn’t: theatre, music, design, etc.).

In fact, I suspect that this incompatibility is so fundamental that there are two entirely different concepts of art and of the artwork in operation. I think this difference is clear both in what constitutes an artwork for each, and in attitudes to the use of pre-existing imagery. Having a foot in both camps might make recognition of the problem easier, but I’ve had two voices trying to talk over each other throughout. So, these are some first thoughts on the matter, hopefully to be developed later. As these are lengthy thoughts, two posts are required.

First, in this post, the issue of the artwork in contemporary art and in copyright.

Throughout the 20th Century, and particularly since the 1950s, art practices have involved exploring or testing the nature and boundaries of art. Many works were based on a testing of what, if anything, could be considered to be fundamental to being art. Whether art required a physical manifestation, and if so, whether this had to involve skill and labour, was one of the matters tested. It rapidly became clear that this was not necessary for an artwork (although some record was usually involved). It also became clear that art could also simply involve a context shift for a pre-existing object or image. For a discussion of this, see A.C. Danto’s ‘Art after the end of Art’.

That art might have little or no physical manifestation, or might be solely a recontextualising of a pre-existing object has been taken pretty much for granted by artists since the 1980s as just another set of means or techniques, not a problem at all.

However, I think this does raise quite serious problems in relation to the conception of art and artwork embodied in copyright law. To consider what the problems might be, here is a question. Would copyright subsist in Marcel Duchamp’s ‘Fountain’, 1917, under current law, particularly the CDPA 1988?

This is deeply hypothetical, not only because of the changes in law since 1917, but because there have been no comparable test cases in England that I know of. I’ll add in a proviso – in 1917, Fountain was not considered as a work of art, or only by a very few people, but it most certainly is now, so let us say that its status as an artwork is not an issue. What ‘Fountain’ has become is the iconic progenitor – the touchstone and lodestone- of much art since the mid 1950s, which is why it is a good example.

The question of originality, in terms of the CDPA and case law, is key. The traditional view that it is the skill and labour involved that makes a work original for the purposes of copyright, as stated in Catnic Components Ltd v Hall & Smith Ltd (1979)

It is hard to argue that Duchamp placed any physical or technical skill and effort into the work, as his material contribution was the addition of the pseudonymous signature and placing the urinal on its back. Arguably this version of originality would simply fail to recognise ‘Fountain’.

What of the undoubted originality involved in Duchamp’s ideas about the nature of art?

If we take ‘Fountain’ as an expression of an idea, let’s say an idea about the conditions of becoming ‘art’, there may be a very limited copyright, following Kenrick v Lawrence (1890) because, arguably, the idea involved is a fairly general one, so that any subsequent work that wasn’t actually a complete duplication, down to the details of the signature, would be unlikely to be an infringement. The idea of the ‘readymade’, as Duchamp termed it, certainly had very many different subsequent expressions and arguably prior ones too.

In Hanfstaengl v Baines (1895), it was suggested that there could be a category of work in which the artist’s ‘design and the idea to which it gives birth, are both of them so novel and exceptional that it would be difficult, if not impossible, for another author to create the same idea without trenching upon his design’. At first sight, this might seem to offer a route for works such as ‘Fountain’ where the idea, or concept, to a great extent is the work

However, I would suggest that ‘Fountain’, like many (not all) subsequent ‘conceptual ‘works involves the physical manifestation as an illustration, example or enactment of the idea rather than its necessary expression, and so not the inextricable entwining of the two Hanfstaengl envisages.

Duchamp, under another pseudonym, did once suggest that ‘Fountain’ involved finding a new aesthetic value in an object not previously considered in that way and thereby transforming it. This may satisfy the ‘artistic’ component of the test of artistic craftsmanship in Vermaat and Powell v Boncrest Ltd (2001), but the necessary ‘craftsman’ component would have to be sadly lacking, so it is doubtful that ‘Fountain’ would come under CDPA 1988, s.4(1)(c).

On the whole, it looks likely that the originality of Duchamp’s conceptions would not get past Buckley LJ’s statement in Catnic that “the labour and skill devoted to developing some idea or invention communicated or depicted by the ‘artistic work’” is not protected by copyright.

So I think that it is likely, or at least strongly arguable, that ‘Fountain’ would not have copyright subsisting in it. If ‘Fountain’ hypothetically hasn’t, then the same could well be true of a whole swathe of modern and contemporary art that depends on the ‘idea’ as the work, with an absent, minimal or appropriated material ‘expression’. For instance, in Michael Craig-Martin’s ‘Oak Tree‘ (1973), would anything except the authored text and perhaps the assembly instructions (which are not part of the work) attract copyright?

For a US based illustration of how conceptually based work makes a tangle of copyright law…

Photographs by Walker-Evans taken in the 1930s, which have since become highly valued works, had fallen out of copyright by the early 1980s. Sherrie Levine produced a series called ‘After Walker Evans‘ which consisted of photographs of Walker-Evans photographs, shot and produced to be effectively the same images. The work was concerned with questioning the artistic and financial value attached to authorship and authenticity. Ironically, Levine then had copyright in her photographic reproductions of the Walker-Evans.

Recently another artist, in a project called ‘After Sherrie Levine‘ has produced pretty much identical reproductions of the Walker-Evans photographs and made them available for download. So, although Levine has copyright in her photographs of Walker-Evans photographs, she does not have copyright in either the idea of reproducing a Walker-Evans image as a new artwork, nor is there infringement of her copyright involved in making a work which may be to all practical purposes visually and materially identical, as long as it involves reproducing Walker-Evans images, rather than reproducing Levine’s reproductions of Walker-Evan’s photographs (themselves reproduced from a reproduction in a catalogue, which is arguably a copyright infringement, depending on when the catalogue photos were taken. See part 2).

Assuming that you have recovered from this vertiginous recursion, I’d have to say that this problem of copyright in some contemporary art has not been tested in a Court, as far as I can see, unlike the appropriation of copyright imagery in artworks, which I’ll come to in part 2. But a valid question is, does it matter? Is holding copyright in these works at all important for the artist?

On the one hand, probably not. The value placed upon originality by the art world – in the art world sense of being the first to ‘come up with an idea’, rather than the physical sense of originality of artwork underlying the law – means that there is no point in producing a copy. A reproduction that involves some context shift, or idea behind it, (pace Sherrie Levine) is generally acceptable in the art world because that is sufficient originality and does not affect or diminish the value (artistic or financial) of the ‘original’ that is reproduced. Quite the reverse, in this Alice world, works reproducing other works serve to enhance the originality and value of the reproducee.

In addition, control over reproduction is also quite easily achieved, as artworks tend to be owned and be under controlled access. Photographs of the artwork have their own copyright and thus reproduction is lucratively patrolled.

On the other hand, it might be very important. One clear example why is what happened to a work by Gillian Wearing called ‘Signs that say what you want to say and not signs that say what someone else wants you to say‘ (1992-3). The style, means and idea of the work – let’s say combining public persona and inner state – was duplicated by an ad agency for a Volkswagen advert. Wearing didn’t pursue a case, in part because of what had happened to Mehdi Norowszian in Norowszian v Ark Ltd (No 2)(1999), concerning a Guiness ad ripping off a film/work called ‘Joy’. It was decided that no copyright subsisted in ‘mere style and technique’, apparently no matter how distinctive or innovative the style and technique might be.

Contemporary art practice has long served as an unpaid R&D department for advertising, in part precisely to the extent that contemporary art is concerned with developing innovative style and technique. There is little or no financial gain in producing direct copies of works, but there is a lot of money to be made in using the ideas, style and technique. This is particularly so when it would appear that, as long as precisely the same physical elements aren’t used, or images re-used, there is no recourse to copyright for the artist.

For the artists, with their art-world concept of originality, this is offensive. All the more so as the ripoffs tend to lack imagination, wit and sophistication, and end up looking like banal caricatures. At this point, the incompatibility of contemporary art practice and current copyright law in their conceptions of value and originality becomes very clear.

However, as I hope part 2 of this might suggest, there may be a certain poetic justice involved in the artists’ being ripped off.