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Visual Artists
Artistic Copyright/ foundational
  principles and select issues
Foundational Principles
• Copyrights and Related Rights Act 2000 Section 2/1 of the Act
  states that:
• Artistic work includes a work of any of the following
  descriptions, irrespective of their artistic quality:
• Photographs, paintings, drawings, diagrams, maps, charts, pl
  ans, engravings etchings, lithographs, woodcuts, prints or
  similar works, collages or sculptures (including any cost or
  model made for the purposes of a sculpture).
• Works of architecture, being either buildings or models for
  buildings and
• Works of artistic craftsmanship.
• open up the possibility that other works can be included
  which do not fall within a conventional artistic copyright
  classification.
Foundational Principles
• The second point to note is that such works are
  protected irrespective of their artistic quality
• Interlogo AG v. Tyco Industries Inc the court indicated
  that slavish copying will not meet the originality test. The
  court also indicated that only the “visually significant”
  aspects of an artistic work are copyright protected. In
  relation to works in general that case also establishes
  that “there must in addition be some element of material
  alteration or embellishment which suffices to make the
  totality of the work an original work.”
• the standard of originality for conventional works of
  painting and drawing has been traditionally accepted as
  low.
Harpbond, Bridgeman and Painer
•   Merchandising v Harpbond – permanent, surface, insubstantial or de
    minimas, bare idea, original.

•   The traditional test for a photograph is that the standard of originality can be very
    low and can be made out with the opportunistic hitting of a button.

•   Bridgeman the United States court employed a different test of originality that of
    Feistwhich requires a minimal level of creativity.

Advocate General’s Opinion in Case C-145/10, Painer v Standard VerlagsGmbH is also
    relevant with respect to photographs.
Article 6 of the Term Directive. ….. a photograph is original if it is the photographer’s
    own intellectual creation (reflecting his personality).
originality is ‘that a photographer “leaves his mark” on a photo’ by using the available
    formative freedom. … sufficient formative freedom in determining ‘the angle, the
    position and the facial expression of the person portrayed, the background, the
    sharpness, and the light/lighting’
Lucas and Sculptures
Lucas: UK Supreme Court on 27th July 2011. The
   court reasoned that the helmet was a mixture
   of costume and prop and that its primary
   purpose was utilitarian that is to say to
   express an idea as part of a character
   portrayal in the film thus the helmet lacked
   the necessary quality of artistic creation to be
   deemed a sculpture.
It was the Star Wars film not the sculpture that
   was the work of art.
Collages and Artistic Craftsmanship
Collages:
• In Creation Records it was determined that the
  distribution of a diverse group of objects and persons
  even though arranged as a composition could not
  constitute a collage.
• The court indicated that there had to be a fixing to some
  physical medium and not just objects strew around.

Works of Artistic Craftsmanship
• real artistic quality or Artistic intent?
• a work of artistic craftsmanship, unconstrained by
  functional considerations
Parody and Moral Rights
Parody in Art:
The question remains whether parody is a defence in this jurisdiction.

1: The US has protected parody and has relied inter alia on the constitutional
    protection of freedom of expression. Parody is speech? In our culture also there
    is protection of freedom of expression under Article 40.6 of the Constitution and
    Article 10 of the European Court of Human Rights.
2: Fair dealing? Within the rubric of fair dealing there is criticism or review.
3: Finally, Clark argues that Parody could be made out by the defence of incidental
    inclusion.

Moral Rights:
Finally mention should be made of the moral Rights and in particular the integrity
   right under Section 109 of the Copyright and Related Rights Act 2000. This right
   protects the author even if he or she has assigned the economic copyright to
   “object to any distortion, mutilation or other modification of, or any derogatory
   action in relation to the work.”
An interesting question is how this interacts with parody.
Practical Issues and Problems
• Copyright notice –endorse upon work on face margin
  or bleed the copyright symbol, year of making, intials
  and name
• Keep a Record email a copy to yourself at the date of
  creation keep post office receipt leave envelope
  unopened.
• Place records with third party you trust
• Register with US Copyright Office
• Reflect all agreements in writing especially to resolve
  ownership or right to use issues in commissioned
  works
• Contact The Irish Visual Rights Organisation!!

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Visual Artists Copyright D. Langwallner

  • 1. Visual Artists Artistic Copyright/ foundational principles and select issues
  • 2. Foundational Principles • Copyrights and Related Rights Act 2000 Section 2/1 of the Act states that: • Artistic work includes a work of any of the following descriptions, irrespective of their artistic quality: • Photographs, paintings, drawings, diagrams, maps, charts, pl ans, engravings etchings, lithographs, woodcuts, prints or similar works, collages or sculptures (including any cost or model made for the purposes of a sculpture). • Works of architecture, being either buildings or models for buildings and • Works of artistic craftsmanship. • open up the possibility that other works can be included which do not fall within a conventional artistic copyright classification.
  • 3. Foundational Principles • The second point to note is that such works are protected irrespective of their artistic quality • Interlogo AG v. Tyco Industries Inc the court indicated that slavish copying will not meet the originality test. The court also indicated that only the “visually significant” aspects of an artistic work are copyright protected. In relation to works in general that case also establishes that “there must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work.” • the standard of originality for conventional works of painting and drawing has been traditionally accepted as low.
  • 4. Harpbond, Bridgeman and Painer • Merchandising v Harpbond – permanent, surface, insubstantial or de minimas, bare idea, original. • The traditional test for a photograph is that the standard of originality can be very low and can be made out with the opportunistic hitting of a button. • Bridgeman the United States court employed a different test of originality that of Feistwhich requires a minimal level of creativity. Advocate General’s Opinion in Case C-145/10, Painer v Standard VerlagsGmbH is also relevant with respect to photographs. Article 6 of the Term Directive. ….. a photograph is original if it is the photographer’s own intellectual creation (reflecting his personality). originality is ‘that a photographer “leaves his mark” on a photo’ by using the available formative freedom. … sufficient formative freedom in determining ‘the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting’
  • 5. Lucas and Sculptures Lucas: UK Supreme Court on 27th July 2011. The court reasoned that the helmet was a mixture of costume and prop and that its primary purpose was utilitarian that is to say to express an idea as part of a character portrayal in the film thus the helmet lacked the necessary quality of artistic creation to be deemed a sculpture. It was the Star Wars film not the sculpture that was the work of art.
  • 6. Collages and Artistic Craftsmanship Collages: • In Creation Records it was determined that the distribution of a diverse group of objects and persons even though arranged as a composition could not constitute a collage. • The court indicated that there had to be a fixing to some physical medium and not just objects strew around. Works of Artistic Craftsmanship • real artistic quality or Artistic intent? • a work of artistic craftsmanship, unconstrained by functional considerations
  • 7. Parody and Moral Rights Parody in Art: The question remains whether parody is a defence in this jurisdiction. 1: The US has protected parody and has relied inter alia on the constitutional protection of freedom of expression. Parody is speech? In our culture also there is protection of freedom of expression under Article 40.6 of the Constitution and Article 10 of the European Court of Human Rights. 2: Fair dealing? Within the rubric of fair dealing there is criticism or review. 3: Finally, Clark argues that Parody could be made out by the defence of incidental inclusion. Moral Rights: Finally mention should be made of the moral Rights and in particular the integrity right under Section 109 of the Copyright and Related Rights Act 2000. This right protects the author even if he or she has assigned the economic copyright to “object to any distortion, mutilation or other modification of, or any derogatory action in relation to the work.” An interesting question is how this interacts with parody.
  • 8. Practical Issues and Problems • Copyright notice –endorse upon work on face margin or bleed the copyright symbol, year of making, intials and name • Keep a Record email a copy to yourself at the date of creation keep post office receipt leave envelope unopened. • Place records with third party you trust • Register with US Copyright Office • Reflect all agreements in writing especially to resolve ownership or right to use issues in commissioned works • Contact The Irish Visual Rights Organisation!!