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Published: Fri, 02 Feb 2018
Art is product of human creativity
Art is subjective. Art is a product of human creativity and is nearly impossible to intrinsically define. So, it is unfortunate that to protect art from being copied, and therefore devalued, in the UK one must pigeon-hole it into narrow fields. Subject matter which is protected under UK copyright law are called “works”. One of these are “artistic works”, to narrow down this category subcategories have been introduced which are defined for the most part by the materials used in creation. For example a photograph is protected and defined by the method in which the artist captures the “art”, by way of a camera. This method of defining art does not take into account artistic input on any level. The Copyright Design and Patents Act (CDPA) 1988 in Section 4(1)(a) it is laid out that graphic works, photographs, sculpture or collage must be protected “irrespective of artistic quality”. The subcategory of “artistic craftsmanship” outwardly acknowledges that the aforementioned categories are inherently artistic in nature and that some arts and crafts may not be artistic, but those that are should be protected. The courts limited this category by highlighting the legislative inclusion of “artistic” but each judge in the leading case on the subject had a different opinion on why a prototype piece of ordinary commercial furniture was not a “work of artistic craftsmanship”. The discrepancies amongst the judges have commentators reiterating that judges should not have to or need to decide a case based on artistic merit, but Booton uses the judgements as an example of why the definitions of the categories should be based instead on “artistic character” so they would not be forced to look at merit. These criticisms aside, the fact that none of these judges could come to the same conclusion demonstrates that there needs to be a change in the law and that it cannot come from the courts as it will only lead to more confusion. When dealing specifically with three dimensional art the CDPA 1988 is limiting in itself for what can fall into the category of “artistic work”. The courts interpretation of what falls into the category of “sculpture” or “work of artistic craftsmanship” is confused and confusing in its short evolution to where artists stand today in their quest to protect their artistic work.
The most debated issue surrounding the UK’s approach to copyright is the limiting reality of the CDPA. Artistic works must fit into a prescribed category to receive protection, due to the exhaustive list provided by the act it is difficult for any new form of subject matter to find an appropriate area to fit itself into. In Creation Records v News Group the assembling of objects to set a scene for a photograph to be taken around a pool could not be protect by copyright. It did not fit into the three dimensional categories as a sculpture because “[t]he scene was not a sculpture since no element in the composition had been carved, modelled or made in any of the other ways in which sculpture was made” it was also not a work or artistic craftsmanship “since it was merely an assemblage of objets trouvés and not the subject or result of the exercise of any craftsmanship”. The scene set for the cover of the Oasis album could not amount to an artistic work because the courts were unable or unwilling to read the section as a living piece of legislation that is to evolve with the artistic community. The courts fear the idea of having to judge art, defining it by an aesthetic standard, this has led the courts to allow blatantly non-artistic works to fit into this category based on the composition or technique of creation. In Wham-O v Lincoln Industries the New Zealand Court of Appeal held that a wooden model to create frisbees was a sculpture under the act. This is an example of how the courts have expanded to protect industrial models under the umbrella of artistic works, but were not able to protect the actual artistic endeavour found in Creation Records.
The court’s expansion of the definition has been criticized as protecting non-artistic works and excluding actual artistic works. The courts have attempted to limit the amount of non-artistic works that are protected by keeping the technique definition of sculpture narrow. This can be seen in J&S Davis (Holdings) v Wright Health Group where it was held that a dental cast was not made for the purposes of sculpture because it was made out of plasticine and therefore was not meant to be permanent. This approach to interpretation does not deal with the underlying problem of limiting the copyright protection on actual works of art. Booton is under the impression that if works were not pigeon-holed into techniques for development and instead required to display “artistic character” the courts would be able to protect works which are artistic and could exclude those which are not. “Artistic character” is established by the creator being aware of the “art world” being in the background. This definition does have it’s own problems, for instance the ambiguous solution outlined in Booton’s thesis to how the courts are to use this vague definition of “artistic character” to define works of art is not entirely clear. He leaves the reader to infer that because Laddie J seems to be using a similar approach to his that it is the way of the future. This assumption is suspect, but it his points are all relevant, the fact that copyright does not define three dimensional object as art where the art world would is a problem. The solution of incorporating expert opinion into this definition is not a new concept for the law, and should be utilized in this instance.
In the case of Metix (UK) Ltd v GH Maughan (Plastics) Ltd a Booton sympathetic approach was used by the court, which changes the way three dimensional objects are interpreted by the court. Laddie J said that ‘sculpture’ should be construed narrowly, that they should be defined in a way an ordinary person would agree with. He defined sculptures to be three dimensional objects made by an artists hand. This inclusion, that the creator must either believe he is an artist or be consider himself to be an artist, brings in an element of limiting the category of artistic works to only extend to protecting art whether good or bad. This in turn should be able to extend the definition to include new and experimental three dimensional works of art into the protection of the CDPA, but Laddie J only used his definition in the negative sense in excluding the functional moulds for making cartridges. If this definition were to be expanded positively to include any three dimensional object made by an artist which has more than just a functional aspect to it then most installation, conceptual art should also be protected. Cheng fears that this logical extension would lead to ordinary household items being capable of being protected, if placed in a museum and given a symbolic meaning. She complains that if a case was to come to court regarding Damien Hirst’s unpreserved cow there would be difficulty because the cow itself is not the important part of the art, it is what it is symbolizing. Therefore if the idea behind the symbol can not be copyrighted, then Damien Hirst will own a copyright on all unpreseved cows, which seems like a stretch of the law. Cheng is at odds with Booton’s ideal definition, she is under the impression that do decide if something has “artistic character” then the judiciary will be placed in a position of deciding artistic intention and that the intention of many conceptual artists cannot be found in the art itself, but in the museums description card. Cheng’s states that if intention cannot be found in the object then the artistic merit will actually be evaluated, but when it comes to conceptual art she is not opposed to judgement. In this area Cheng is, simply put, wrong. Copyright is supposed to protect artists from being copied without compensation so that income can be derived from artistic endeavours. If successful artists, recognized by galleries and critics cannot protect their work through copyright, how is a struggling artist trying to begin their career supposed to hope to protect their works? It is obvious that art is subjective and not all pieces will be loved or appreciated by all patrons, but discrimination is not the solution.
The courts had developed definitions to each subcategory of artistic work based upon the techniques used to create the art. This approach did not work for sculptures or artistic craftsmanship because they are a product of a technique. The courts used the technique definition here until it proved impossible and then turned to the idea of requiring artistic intention, as seen in the Upholstery case and in Metix. The courts have not come to a consensus of what the definition of artistic is and we are left with Laddie J’s interpretation which is only applied to purely functional objects, and does not extend to other forms of art that are not currently protected by the CDPA.
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