Copyright Law and Modern Art: A Strained Relationship

This is the skeleton to an exam question on copyright and modern art. It is a 1.1 standard.

Copyright refers to the laws that regulate the use of the work of a creator. The relevant law on the matter is the Copyright and Related Rights Act 2000, as amended. This act affords copyright protection to artistic works, musical works, literary works and dramatic works. Artistic works are protected by Section 2(1) of the 2000 Act. The act contains a list of what is covered by the term, stating that an artistic work is one including the set list, thus creating a broad interpretation of what is defined as a an artistic work. What is important to note is that there is no requisite for artistic skill as was held in the cases of Green (1899) and Interlego v Tyco(1988). A musical work is defined as “…a work consisting of music, but does not include any words or action intended to be sung, spoken or performed with music” by Section 2(1) of the 2000 act. A dramatic work must contain dramatic scenery or dramatic effect to constitute a work under this heading. Finally, literary works are also protected by the 2000 act. S.22 defines a literary work as a work “…which is written, spoken or sung.” So for example speech is protected by the 2000 act. S.18 notes how some degree of fixation is required for a literary work, musical work or a dramatic work. This need for fixation does not apply to artistic works, but stokes is of the opinion that a similar requirement may be “…demanded by the courts.” It is of great importance to note that for any of the above works to be protected they must be original. There is, unfortunately, no definition of what constitutes originality but the leading case on the matter is Gormley v EMI Records ( Ireland ) Ltd (1999). The question here was whether or not the words in the plaintiffs story ‘and then there were twelve’

constituted an original work. The court held that it was not, noting that originality was in the realm of thought, despite the idea/expression dichotomy which is so fundamental to copyright law. On a final note, the court held that notice must be taken of the “skill, labour and judgment” used to create a truly new work. As Simon Stokes notes, the copyright afforded to a variety of modern art is a matter of some debate. This is because it either strains to fall under the category of ‘artistic work’ or its originality is uncertain. Also Barron points out that it is the laws taxonomic approach to the characterization of its protected objects which leads to the law struggling to deal with contemporary art practices. An example of this is the 2010 winner of the Turner Prize, Susan Philipsz. Her artwork was a sound installation entitled ‘lowlands away’.

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