Dawn Ellmore Employment looks at intellectual property in contemporary art

1. Dawn Ellmore looks at intellectual property and contemporary art
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.

2. 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’.

3. 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.