Because of the ever changing contemporary art world some pieces of work will inevitably be very hard to place a definition upon, thus causing a problem when trying to protect the work. In the case above the Oasis Album cover did not get the deserved copyright protection, because it seems the work could not be placed correctly in to an area covered by section 4 in the CDPA of 1988. More problems are also created where a piece of contemporary art is to be considered a work of ‘artistic craftsmanship’ under subsection (c). In this situation certain qualitative features are necessary in order to gain copyright. It was in the case of George Hensher Ltd v Restawhile Upholstery (Lancs) Ltd that showed judges starting to make opinions and comments on what is actually needed to constitute a piece of work being considered ‘artistic craftsmanship’.
In this case a proto-type made for a suite of furniture was held not to be a work of craftsmanship. In order for something to be classed as a work of artistic craftsmanship it must have some ‘artistic quality’. Although ‘artistic quality’ was considered an important qualitative necessity in this case, no conclusion was made of a workable test. What was agreed however in this case was that the work must be viewed in a detached an objective manner. The problem with any ‘contemporary’ piece of art is where to draw the line and label the work into a certain area or statutory provision. This is what the courts are continually debating and have done so in previous case law. What one person might consider a masterful artistic piece of craftsmanship; another may consider it simply an inanimate object.
Taking an objective test still may not solve the problem, as although reasonableness is considered you cannot argue that people have the same reasonable opinion as indefinitely opinions vary particularly with changing social environments. The fact that not everybody shares the same opinions makes it very difficult to make a definitive guideline in determining artistic craftsmanship and for this purpose contemporary art. Another profoundly stated comment made by Lord Reid in this case proves of great importance. He said that
“A work of ‘artistic craftsmanship’ would have the necessary artistic quality if any substantial section of the public genuinely admired and valued the thing for its appearance even though others may have considered it common and vulgar”
So here Lord Reid considers a test that would define a piece of work ‘artistic craftsmanship’ if provided the majority of the public liked it. Again although this seems logical, it is a little impractical. How would it be possible to ask or gain knowledge of an entire publics opinion, where an artistic was not particularly well known. Unless of course an opinion poll was completed, in which case it would be incredibly time consuming and not particularly cost–efficient.
The courts also have to consider the intention of the artist or maker before considering any kind of copyright protection, especially when considering whether the item constitutes a piece of ‘artistic craftsmanship’. In the High court decision of Merlet v Mothercare Plc [1986] the court had to decide whether a proto-type cape for a baby, called a ‘rain cosy’ constituted a work of artistic craftsmanship. In doing so they considered the maker’s intention. Justice Walton stated that the purpose of the garment was to protect a child from the rigours of the Scottish climate and that the plaintiff had not been concerned with the creation of a work of art. So again it seems that intention is vital before applying any kind of protection. Say for example if a person were to accidentally create a contemporary art form, would this then be able to gain copyright? What the courts will find is that more problems will occur with changes in time and opinion and to what is considered ‘art’ in the eyes of society. Although it will always be necessary to have some kind of statutory guideline in defining what art is, it doesn’t really offer appropriate protection to all contemporary artists where there is a limited amount of description in the statutory provision. It is also the way that the judges are interpreting these statutes that will determine the extent of the protection. This seems to be at the depth of the problem, trying to define art for the purposes of copyright and the way that judges interpret the CDPA of 1988.
A purely fictitious example would be whether to give copyright to an upside down placed table? Using the CDPA of 1988 the judges have a choice of a taking a very literal meaning of the words or rather to be very flexible in interpreting what an upside down table could be? In this example there are several other things that must be considered if the court is to recognise an upside down table as a piece of artistic work contrary to Section 4. First of all there has to be some kind of originality for the piece of work to be considered for copyright. Also that copyright should be allowed as to protect the interests of the copyright owner. Or simply summed up in the words of Justice Peterson in University of London Pres Ltd v University Tutorial Press Ltd, where he said
‘…there remains the rough practical test that what is worth copying is prime facie worth copying’
However, again this brings us immediately back to the question of what exactly is worth copying? I suppose it is at the core of this question, evaluating the extent that copyright law gives adequate protection to contemporary art, is both the extent and ultimately the coverage made in Section 4 of CDPA 1988. Followed by the way the judges interpret this statute, together with perhaps their opinions and that of professionals in the area of contemporary art. Although that we know in a court of law, any emotive feelings or biased opinion should be eradicated, it seems with regards to determining what contemporary art is and whether it should gain copyright, this is something that is ultimately required.
One thing that we can say is that copyright law does not offer complete protection to every piece of contemporary art. This is a fact that will always remain the same. If we consider factors such as originality, the intention of the creator, whether it will be appreciated by the public, and the very controversial meaning of ‘artistic quality’ when considering artistic craftsmanship, not every piece of contemporary art will gain copyright.
Back to Originality that is a necessity for all work to gain copyright, and not just for artistic work, the meaning of the word has been interpreted very loosely. In Ladbrooke (Football) Ltd v. William Hill (Football) Ltd Lord Pierce stated that the word ‘original’ requires.
“.. only that the work should not be copied but should originate from the author”
So here the courts did not require that the work be innovative or new, like its literal meaning but were more concerned with the manner in which the work was created. And from the quote they were more concerned that it should originate from the author, its creator and that it was not copied from another work. This seems very much in favour of budding contemporary artists seeking to obtain copyright, as although the work must be original it is not acting as a restriction when creating the work. Another point to note is that if their work is in fact not original from a previous artists work, the time period of earlier work should be considered as it may have expired or it is not a work of copyright at all. The extent by which a work may be considered original is also equated with the degree of “skill, labour and judgement” then went into the creation of the work. This test was also used as a means of determining whether a thing is actually a ‘work’ to begin with and is sufficiently adequate.
Within copyright law and the protection provided to contemporary works of art there are certain tests that need to be fulfilled in order to gain this protection, some that I have already mentioned such as originality, or ‘artistic quality’ when considering artistic craftsmanship. You could say that these are bars to allowing protection of their work, because surely every contemporary artist should have the right to protect their work? Why is it then that these tests have been created and have made the law very problematic in determining whether a piece of work should gain copyright? I suppose lines have to be drawn in preventing certain work from gaining copyright where it is simply just not deserving enough. For example should an artist really be able to gain copyright for something as simple as a red squiggly line? It seems unlikely if it a bit pointless, but these things do happen in the law especially with developing artistic work and with the definition of contemporary art work changing from decade to decade. The law has to cater for changing times and in this essay contemporary art.
Another very negative test that must be fulfilled in order to gain copyright protection is the De minimis Principle. It is this principle that seems to prevent every little artistic work from acquiring protection. The idea behind it relates to drawing separation between works that are subject matter of real copyright and from those that are not. Also known as the principle of de minimis non arat lex, or that the law does not concern itself with mere trifles, it seems to speak for itself. It was renownedly used in Exxon Corporation v Exxon Insurance Consultants International Ltd [1981], where it was held that the word ‘Exxon’ could not be an ‘original literary work’ without acknowledging the principle De minimis. What this means is that indeed not all contemporary art will gain protection such as my red squiggly line example, works such as these will be considered insignificant, or worthless and the law must draw a line to stop such work from being considered ‘artistic’ and gaining protection.
So far in this essay I have focused very specifically on the criteria required by the law in order to gain copyright protection. The reason I do this is that in essence we are trying to find out whether the law provides adequate and appropriate protection. By considering the criteria necessary or the negative and positive tests we are as a whole actually considering the extent of the protection and indeed the bars to protection itself. In the second part of this essay I will be focusing on what exactly happens when an artist gains copyright protection, the extent and the consequences of infringement. Before moving on to this subject area I would like to mention lastly the idea/expression dichotomy that is causing the law many problems when determining copyright protection for certain works.
It is this idea/expression dichotomy that will always continue to cause the law major problems. Amongst other respectable judges and professionals it was Justice Jacob in IBCOS Computers Ltd v. Barclays Mercantile Highland Finances Ltd that said “there is no copyright in idea.” It is supposedly the expression behind the idea that warrants the protection of copyright. Although this is not a clear-cut test as in America it is the reverse of the situation in the UK, as ideas do warrant Copyright. It is the Berne Copyright Convention that also further backs up this theory that the expression of ideas rather than the ides themselves should gain copyright. If anything this dichotomy reduces the protection available to contemporary works of art. By applying the test it will surely reduce the availability of copyright protection and some artwork is purely based on its idea? However the method in copyright law is that the work must have some tangible from, from example in Merchandising Corp of America v Harpbond [1983] the court considered that for a painting to be considered for copyright it must be considered and object and not just an idea. However although this may be the case sometimes copyright law does cover ideas, such as the white empty room with the light turning off and on, or Carl Andre’s pile of Stacked bricks. It seems nowadays that contemporary art form is actually moving towards a more idea based movement, so surely this dichotomy is depriving protection where is quite obviously deserved?
Why is it that the creator of a work should be deprived a right to control its future because of some contorted test? I think the truth of the matter is that the idea/expression dichotomy should not be an issue in granting copyright protection. The judges should focus more on the general application of the legislative provisions and ignore the De minimis principle and idea/expression traps. It does seem that as case law develops and the law itself more criteria is being created in order to determine copyright, thus inhibiting acceptable contemporary art from gaining protection. Perhaps it is time for reform of statute or to ignore confused and less-established case law rules?
So as more case-law develops it seems in the UK it is making an ill-founded transition from the reward for work theory to a position where it seems impossible to gain copyright for a piece of work because of all these tests that need to be fulfilled. It is does not matter if a piece of work is purely an idea or if it requires just simple labour. What should be rewarded is a combination of the both, the mental application and the labour. A work that requires purely skill in its execution should not be better protected that one which is created by a conception of the mind. It seems that we are being drawn into numerous tests for the subsistence of copyright, and it seems to be undermining true copyright law. With this is mind it seems that perhaps contemporary artists are not getting the required adequate and appropriate protection desired.
So what happens when a contemporary artist successfully gains copyright protection? After fulfilling all the necessary common law and statutory criteria, does the artist gain adequate protection over his or her work? Under Section 16 (1) if the CDPA of 1988 copyright protection gives exclusive rights to an author, artist etc to:
- Copy the work
- Issues copies of a work to the public, or publishing it.
- Performing, showing or playing a work in public
- Broadcasting a work or including it in a cable programme service
- Adapting a work or doing any of the above acts in relation to an adaptation of it.
If another artist does any of the following then he or she will be in primary infringement of the work. The statutory provision above seems to cover every possible eventuality and once an artist has gained copyright protection he or she will have adequate and appropriate protection. Therefore it seems the difficulty for new artists is actually gaining the protection in the first place, the question to whether it is adequate is quite simply yes. The real problem as I have mentioned before is that some artists are not getting the deserved protection in the first place, because of the harsh and stringent criteria that needs to be fulfilled. Perhaps what is needed is a reform of the statute in order to cover every possible new artistic movement and work, but at the same time it should not be so relaxed as to allow worthless, uncreative work to gain protection.
Bibliography
- The idea /expression Dichotomy and the Games that People Play, [1995]
- David Bainbridge-Intellectual property 2001
- Bentley & Sherman-Intellectual Property 2001
- Cases and Materials Cornish, Intellectual Property 1998
Pictures printed out on relevant Web Page.
Creation Records Ltd v News Group Ltd. [1997]
LB (Plastics) Ltd v. Swish Products Ltd [1979]
Geo Ward Moxley Ltd v Sankey [1988]