Critically evaluate the extent to which it can be said that copyright law gives adequate and appropriate protection to contemporary works of art?

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Intellectual Property Law Assessed Essay

Student No: 001813779

Question 1.  Critically evaluate the extent to which it can be said that copyright law gives adequate and appropriate protection to contemporary works of art?

In this essay there are certain questions that need to be resolved in order to completely consider the protection to contemporary works of art under copyright law. In general it will be necessary to consider what exactly contemporary art is in order to understand the extent of the protection, and whether this is reasonable, or is there grounds for reform of the law?

Perhaps the law is too strict in this area of litigation, or on the contrary is may be too easy to gain copyright for something that is considered a form of contemporary art? Looking back at the question, by saying to what extent does the law provide adequate and appropriate protection to contemporary works of art, there is an immediate suggestion that there is in fact a problem with the law. How far will the courts go in order to protect so-called contemporary art?

 In order for a contemporary art form to be considered for copyright there are certain statutory and common law obligations that need to be fulfilled. Firstly it is section 4 (1) of the Copyright, Designs and Patents Act 1988 that defines ‘artistic work’ as meaning:

  1. a graphic work, photograph, sculpture, or collage. IRRESPECTIVE OF ARTISTIC QUALITY
  2. a work of architecture being a model for a building, or
  3. a work of artistic craftsmanship

What is important in the first category is that copyright exists, irrespective of artistic quality. With regards to the extent to which copyright gives protection to contemporary artwork this is very positive for new artists seeking to obtain copyright. So if the courts are satisfied that a contemporary piece of art work falls under section 4 1 (a) and it is either a graphic work, photograph, sculpture, or collage the artist will almost certainly obtain copyright and gain full protection over his or her work. This means that a Jackson Pollock painting made up of coloured squiggles is just as deserving of copyright protection as a very traditional landscape or self-portrait. What this formula ensures is that personal taste or preference is no bar to copyright protection. However we will see later that in fact although this may be true it is not always the case as opinions of certain judges on artistic work may alter the right to gain copyright altogether.

Although the phrase ‘irrespective of artistic quality’ may seem to open the floodgates in allowing protection for a lot of contemporary works, it also causes a great deal of problems. One would think that in fact anything under this category in section 4 1(a) anything would deserve protection, however this is not the case. When considering a particular art form under this category, things such as light, the angle of the work, and use of colour are all necessary when determining copyright protection. The examples I have chosen by Michel Alexis are all contemporary works of art, the problem when trying to protect theses pieces is that are all very similar, but deserve copyright protection in each case. I suppose the hardest thing for a judge to decide in determining whether a piece should gain copyright is that, does it really distinguish itself from all the other items of work that look exactly the same? In Michel’s work they are all very different but certainly have similarities that would go against the criteria for allowing copyright. This criteria under common law I will discuss later, I am simply pointing out at this stage the complications of determining what really warrants copyright protection in the world of contemporary art.  

Within section 4 1 (a) it deals with sculptures, an area that seems to be very controversial when determining whether copyright protection should be granted. A huge proportion of contemporary work does seem to fall into this category when defining it for the purposes of copyright law. An attempt was made in the Oasis Album cover case to determine a piece of work as a sculpture in order for it to be protected against any infringement, in this case taking photographs of the work for the purposes of showing them to the public. Unfortunately the work did not gain any protection, as it was not considered a form of artwork under the relevant statute of 1988. Although the work was clearly original, and constituted some form of contemporary art, the important thing was that it did not constitute art in the eyes of the law. There was a suggestion in this case that perhaps it was a collage contrary to section (a) that falls under the extensive meaning of graphic work. It was decided however that it could not form a collage as the work was merely temporary and was not a collection of objects stuck together. This proves that in fact what might be considered quite clearly a piece of contemporary art in the eyes of society, may not gain the relevant credit under copyright law, and the required protection. I find it quite disturbing that in this case something that has been created specifically for an economic purpose and that will probably contribute to the selling of the album cannot gain copyright protection.

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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 ...

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