Copyright Law and Contemporary Works of Art - Essay Example

Copyright Law and Contemporary Works of Art Teacher’s 11 October Copyright Law and Contemporary Works of Art Introduction The paper discusses inconsistency between Copyright Law and contemporary works of art (appropriation art). One of the major issues in the sphere of art today is the conflict between many contemporary artworks and the definition of the term ‘work of art’ by existing copyright law. The law is more than twenty years old. Much have changed since 1988, the time when the law was issued, and today many works of art are not protected because they cannot be defined by those terms specified in the law (Stokes 123). The term of copyright is tightly connected with the notion of authorship. One does not exist without the other. In American tradition, an author is a creator and full owner of the original artwork. In copyright law, author is the major actor. Author’s role is defined in U.S. Constitution, while copyright law is part of federal law. Article 1 Section 8 of US Constitution states: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (U.S. Constitution Online). Even after death of the author, his copyrights continue their existence. However, the modern era have brought many issues connected to originality of created works, authorship, and modern copyright law. The very first law to regulate and protect original intellectual works was Copyright act of 1790. Firstly, it was solely publisher’s privilege and only later copyright law became “author’s right in her intellection product” (Bracha 186). Only in the nineteenth century the very essence of the copyright law was fundamentally altered. Today it is Copyright, Designs and Patents Act 1988 which regulates authorship rights and protects holders of artworks in the UK. The right of copying artwork includes reproducing, preparing derivative works, distributing, performing, and displaying The law protects original works of art. The existing law applies to such works of art as follows: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works (Copyright Law, Chapter 1, §102). The impact of copyright Copyright law is an example of a specific kind of product. This product is a masterpiece of artistic production. This piece comes together with the other related pieces and is very popular in modern society. This piece of art is related to such important business activities as trading, conserving, exhibiting, performing, reproducing and distributing works of art or reproductions. The main issue about “dogmatics of copyright is that this dogmatics is able to elucidate the normative import of art and aesthetics.” (Chicago. John M. Olin Law & Economic working paper. No. 113. 2D series) Both issues come in line together and are used to denote the implicit aesthetic theory of the law. The main objective of pragmatic analysis of copyright law is to contribute deepening of human understanding of copyright. This idea is can be traced through the examination of the effects it has on the practices governed by people. A pragmatic analysis of copyright law indicates that this analysis should be carried out with a careful consideration the economic dimension of the practices. Without any doubts, copyright laws regulate economic sphere of human research. The law plays a relevant role not only to lawmakers and legal scholars, but to a large group of those who are interested in the social, political and aesthetic consequences of legal regulations. According to the recent research, these regulations can be regarded as a very important dimension of modern societies. A particular attention in modern research should be paid to investigation of the impact of copyright law has on art and the manner in which it is able to reward to scholars interested in elucidating the structure and the functions of this modern system of regulation art. The key issues associated with copyright laws include such important modern concepts of art as: aesthetic, authorship, originality, individualism. All these concepts exist separately from each other. The art as autonomous notion can exist only under certain historical conditions. These conditions exist with the aim to help person to fulfill a particular task. The task is fulfilled in the more or less autonomous spheres of validity. These spheres are presented as the differentiated patterns of communication which currently exist in modern society. These concepts also exist within certain institutions. The ‘juridical’ and the ‘aesthetic’ are regarded as autonomous spheres of the modern world. These spheres exist with the aim to analyze in detail all the institutions of the art-world. However, when to look deeply at the essence of social constitution of the normative concepts we can see that these concepts exist indispensably for our art-related practices. It is also indispensable for art theorists to take into consideration the legal dimension of the whole issue. Furthermore, one of the debates of contemporary arts world is the right and extent of art appropriation by other artists. Appropriation occurs when one artist, for instance, writer creates masterpiece, which later inspires another artist, sculptor, to create a sculpture pertaining to the theme of the former artwork. Many cases related to art appropriation have been brought to court and argued there. For instance, famous court cases are Rogers v Koons and Cariou v Prince in the US (Stokes 134). The main question in cases over appropriation art issues is to what extent infringer copies original work (all the work or some part of it). One of the areas of copyright law which is often discussed today is protection of visual works of art. Artists the same as any other authors have the right for their works to be protected from being copied by other authors. Visual culture found its reflection in the sphere of advertising. There are a number of cases when authors of artworks have to sue those who are a threat to their intellectual property. An example of such case is related to copyright issues of Richard Prince’s (US artist) works. There are direct rights protected by copyright law such as those related to copying and publication of author’s artworks. Besides, there are ‘moral rights’ that are granted to the artists in the UK. These rights are divided into the right of attribution and the right of integrity. It is clearly that existing copyright law needs to be amended to solve the issues related to art appropriation. Usage of someone else’s work, even in parody is already infringement of copyright law. At the same time, however, it’s impossible to create an original artwork without the slightest shade of appropriation (Tushnet 73). Appropriation Art Appropriation practice has become especially popular during the last decades. One of the most distinguished appropriators of modern time is Elaine Sturtevant. She began her activities as during the last decades of the present century. Borrowing in art is nothing new. This technique is very popular in modern art. Sturtevant was a very professional painter who did her job well. That is why it was nearly impossible to differentiate the works of this author from original. The practice of appropriation spread further. Now it is very popular among people. People are borrowing imaginary from other people’s works and present this imaginary as their own work. Without any doubt appropriation artists violate copyright laws. These people eschew any responsibility for the details of their work, which contains information about pieces created by other people. By including other artworks virtually unaltered they engage themselves in copyright violation acts which are not clearly defined in law. Minimalist Art Furthermore, one of the issues pertaining to modern art and copyright law is minimalist art. Often such works are not protected by copyright law, because they are very abstract and often are not considered to be artworks. The UK copyright law protects simple paintings and drawings though, but “the cope of protection is very limited” (Stokes 126). However, some of the works of art are too simple that almost anyone can complete. So, it is hard to make a borderline what works of art should be protected by copyright law and what should not. One more example of modern work of art which is questionable in terms of copyright law protection is advertising, which incorporates modern technological advances and artistic creations. One of the cases where a film director sued against an advertising agency was Norowzian vs. Arks Limited (Stokes 128). It was the issue of copyright law violation under the sections 16 and 17 of the Act. One of the major controversies was whether a film Joy can be considered to include a dramatic work. When a plaintiff refused to direct similar advertisement, the agency found another director, as well as actor to utilize the same editing performance. The defendant claimed that the company did not use or copy the original film and, hence, it could not be regarded as infringement for the reasons of the Act. Usage of “jump cutting” techniques in a film was not real life movements, but original technical creation of the director. Thus, the film contained dramatic work and it’s copying by advertising service was infringement of copyright law (& Firth 220). At the same time, however, a shooting of a film with abovementioned technique is not defined by copyright law and, hence, it’s copying cannot be considered as infringement. It could not be dramatically work, because the movements performed could not actually be performed in real life. Film editing techniques are not considered to be original, so Mr. Norowzian lost this case. Parody as a Type of Appropriation Furthermore, one more form of modern artwork which is controversial concerning its protection by Copyright law. The work which is parodied is partially or wholly used, while a parody includes such elements as satire and mockery and it “causes readers to rethink the messages of the original” (Tushnet 140). Parody can be claimed to be anti-plagiarism, because its purpose is not concealing the real sources, but making it even more known. Also, it is called self-reflexive form of art of the twentieth century (Stokes 135). There reader or listener is challenged to reevaluate the original work of art. A parody requires a lot of additional work and editing or remaking. It might sound strange, but the bigger part of original text is copied by parody, the more successful and entertaining it is. Parody is a special type of writing with transformative function of making what is implicit into explicit. Often parody themes include such topics as sexuality, homosexuality, miscegenation, etc (Tushnet 141). In addition, exaggeration is one of the main features of every parody. Consequently, a parody is a new and original product, even though it is being based on another work of art. Therefore, critics are regarded as creators or authors of original texts. A court determines whether a parody is critically transformative. Transformation is not about only adding new material, because it would be too simple and there would not be distinction between a parody and a satire. The original author whose work has been parodied is to some extent responsible for the new satiric creation. A parody should have deep connection with the original it is written on; otherwise it might not be considered a parody. The original author might even object or reject the parody on his work. Hence, property attribution in case with parody raises an issue of characterization. It’s important to create characters which are recognizable to the audience (Tushnet 141). What is the most important that both copyright and moral right (as well as any other intellectual property rights) protects an author of original text against parodying. Anonymity and Pseudonymity Writing lays in the context of employment law. The main point of concern of this law is trade mark issue. Greg Lastowka once pointed to the need to “call for recognition of the trademark function of authorship.” (Liemer 98) He even introduced the idea that there is a strong need to regulate attribution interests. In general, regulation of the whole case is intended to prohibit “deceptive misattributions of authorship”. (Liemer 10) In not properly tackled, the imperfect nature of this law can lead people to the growing rate of consume harms. Another perspective was suggested by Henry Hansmann and Marina Santilli. These researchers offered their own perspective brought by the whole work. In the view of these authors anonymous works have a great power over people. The first difficulty encountered by modern law is the presence of a big amount of anonymous and pseudonymous works. VARA does not cover the issue of anonymity. Also, the law does not include specifically the negative rights of anonymity or pseudonymity. Traditionally, these rights make a part of the Berne Convention (Kwall 16) David Nimmer is one of the researchers who observed the major tendencies concerned with law retribution. Berne noticed that the law at this point is very sparse what means that there is a string need to introduce a whole list of important corrections into this law. World Intellectual Property Organization (WIPO) also was informed about the problem. As an outcome, the organization published a special guide which was intended to cover many aspects of modern law. The convention recognized each aspect of modern right of attribution. The law itself has many reasons that stand behind this law. The first and the most important reason that stands behind this law is an author’s decision to create his work anonymously or under a pseudonym. The other important tendency was observed by Hansmann and Santilli who pointed to the fact that an “artist may have good reasons to exist in the public’s mind as two different artists” (Lastowka) Current research suggests that there is a whole list of the reasons underlying an anonymous or pseudonymous attribution choice. These reasons are related to how the author understands both personal meaning and hidden meaning of work. VARA is placed in list of laws which cover only visual art. VERA combines a set of laws related to paintings, drawings, sculptures and other works within the scope. All these works appear within the scope of VERA. These works are typically not regarded as the sort of works which can be created anonymously or under a pseudonym (Kwall 67) The other important concern of modern law is that although some statutes do not cover moral rights, some of them explicitly cover an author’s right to receive credit under a pseudonym. This is one more important concern of modern law. Also, there are frequent cases when a visual artist might choose to create under a pseudonym. This measure is often taken with the aim to hide person’s true identity. This is done in order to convey a particular message through the works of this person. Respect for anonymity is the other important concern of modern research. With the help of these laws we can recall the Holocaust survivor example. This example was discussed earlier by two progressive people who were engaged in research. Conclusion Being not very new existing copyright law protects original works of arts against being protected. However, many contemporary works of are not defined by the existing law, for instance, visual art. Also, there is such an issue as art appropriation, which often leads to copying someone else’s work and breaking copyright law. “Slippery slope” of contemporary artworks are such notions as minimalist art, parody, advertising, etc. Today it is often to identify a borderline between original artwork and it’s partial copy with creative additions. Many new and unique works of art keep being created daily and, unfortunately, many of its authors cannot protected their masterpieces just because they go ahead of time and create something new which is yet to be defined one day in the future. Works Cited Barendt, Eric M. and Firth, Alison. The Yearbook of Copyright and Media Law. Bate, Stephen., Palca, Julia., Ensor, John., and Gibbons, Thomas (Eds.). Volume 4. Oxford: Oxford University Press, 1999. Print. Bracha, Oren. “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright.” Yale Law Journal 118.2 (2008): 186-197. Print. Copyright Law of the United States of America. US Copyright Office. 1 November 2010. Web. 6 November 2010. Kwall, Roberta Rosenthal. “Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul.” Notre Dame Law Review 81(2006): 74-85. Print. Lastowka, Greg Lastowka, “The Trademark Function of Authorship.” bepress Legal Series. Working Paper 1783. September 21, 2006. Web. 8 November. Lastowka, Greg. The Trademark Function of Authorship (February 3, 2005). Liemer, Susan. “Understanding Artists’ Moral Rights: A Primer.” Boston University Public Interest Law Journal 7 (1998): 41-57. Print. Olin, John M. “Law & Economic” working paper. No. 113. 2D series. Web. 9 November 2010. Stokes, Simon. Art and Copyright. Portland, Oregon: Hart Publishing, 2001. Thill, Robert. Intellectual Property: A Chronological Compendium of Intersections between Contemporary Art and Utility Patents. Leonardo, Vol. 37, No. 2 (2004), pp. 117-124. Print. Tushnet, Rebecca. “Payment in Credit: Copyright Law and Subcultural Creativity.” Law and Contemporary Problems 70.2 (2007): 135-146. Print. U.S. Constitution Online. Steve Mount Website. 2010. Web. 6 November 2010. Read More