Intellectual property and patent law is important to artists in particular. In a world where it can be difficult to ensure art gets the recognition it deserves, IP law is integral to rewarding creativity and protecting the rights of the original artists.

It also ensures that artists are protected from other people using a reproduction of their original work and gives them the right to be paid for their work.

Conflict in contemporary art

Strangely, in the world of contemporary art, IP law can be seen as a threat to art. Contemporary art is mostly based on reinvention and reworking, which can involve borrowing from existing works of art in order to come up with a new interpretation.

So, at which point does the legal right of one artist end, and the right of another artist begin? This is where conflict can arise within IP rights and contemporary art. It may seem obvious that the rights of the artist doing the ‘borrowing’ should be lessened, though it’s often argued that this solution is far too simplistic.

Some argue that pretty much all art borrows somehow from a pool of knowledge that already exists. Based on this argument, the previous solution is not viable. The rights of both artists (those that want to reconfigure existing art, and the originating artist) need to be considered under intellectual property law.

Substantial similarity

The test of ‘substantial similarity’ examines the amount that the art has been borrowed. If the artist that has reimagined someone else’s work has produced art that is substantially similar to the original work, then the rights should be restricted.

Again, the problem with contemporary art comes with the fact that its very concept (often producing new interpretations of existing works of art) requires a high degree of borrowing.

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, as art has expanded over the decades, it has become more difficult for the law to differentiate what is considered an artistic work, and what isn’t.

Current law on creative work

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. These are: “literary, dramatic, musical and artistic works; films; sound recordings; broadcasts; and typographical arrangements of published editions”.

This means that UK copyright only protects eight kinds of creative work. However, many contemporary works of art just don’t fit into these categories.

Is a different approach needed?

Some argue that this ‘closed list’ is too restrictive when it comes to defining art work. However, this could lead to judges having to make difficult decisions which may risk uncertainty.

There have been cases that show that there does seem to be genuine uncertainty as to what should constitute a specific artistic work under the law. The lack of definition also leaves it open for people to abuse the law to get legal protection.

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’.

Could new categories help?

At the moment, digitally created images can only be protected as ‘artistic works’ if they can be somehow included in the categories of ‘painting’ or ‘drawing’. Installation art and found objects, while a huge part of today’s contemporary art scene, have no recognition in the law unless they can be claimed as a sculpture.

It’s clear that it’s not always easy to establish which category an artistic work should fall under. This makes moral rights of artistic works all the more important. 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 take action to gain the right to be identified as the creator of their own works.

About Dawn Ellmore Employment

Dawn Ellmore Employment was incorporated in 1995 and is a market leader in intellectual property and legal recruitment.