Expert views on art and copyright

  • Copy City (still) by Denise Hauser (Animation, 2008)

In 1926, Edward Steichen entered the USA with a prized possession – Brancusi’s sculpture Bird in Space. Artworks were exempt from import tax; the customs official, however, took a long hard look at Brancusi’s sculpture, decided that it was more like a lump of metal than a work of art, and charged Steichen $240.

Steichen and Brancusi enlisted their friend Duchamp, who took the case to court. The press were eager to follow the case, perhaps because of its farcical nature. Famous artists and critics appeared to affirm Brancusi’s genius; the prosecution called upon traditionalists who described the work as no more than a polished brass rail.

When Brancusi himself was called to the witness box, his detailed explanation of his working process apparently won over the judge. The court ruled that the sculpture was, contrary to appearances, a genuine work of art. Headlines declared, “It’s A Bird!” And art was legally redefined. (Read more on this famous case here.)

Henry Lydiate’s fascinating FuelRCA talk on art law last month included a number of examples like this, that not only touched on legal questions, but on the issue of what an artwork is in the first place. Although the ability to actually prosecute cases mostly depends on money (lawyers are expensive – thankfully Henry came to speak to us at a big discount), each case makes new precedents for art and design. 

Here are some key points from Henry's very enjoyable talk:

- Artists have strong protection for their work in the form of copyright. These rights are connected to your country of birth. For example, UK-born artists’ work is copyright-protected for 70 years after the death of the artist, while works by Mexican artists have one of the longest copyright durations in the world: until 100 years after the artist dies.  

- Designers, on the other hand, can make use of trademark for their products. The law draws the line between design and art like this: if your work is manufactured industrially in editions of more than 50, it’s a product, not an artwork.

- Copyright arises automatically (i.e. you don't have to go and apply for it), but you can help protect yourself against potential problems by keeping signed and dated copies of sketches and notes. 

- A work can use elements of another work, as long as it substantially and convincingly transforms these into a new work. Collage is a legally recognized art form, as long as the appropriated parts are combined into a new whole. However, any new work entirely based on an existing work could potentially be subject to legal difficulties, although of course many artists such as Sherrie Levine play with this territory.

- If you really want to use another artist’s work, you can try just asking. As Henry explained, Andy Warhol managed to get permission for some of his appropriated screenprints from people who didn’t realise quite how famous he would become. However, Patricia Caulfield, a magazine editor who created the image that he used in his Flowers series, got an out-of-court settlement that made her quite rich.

- Copyright does not protect ideas, only the material work. While designers can protect ideas in the form of patents, artists cannot do this.

- Different parts of an artwork have different copyright. For example, in a theatrical performance, the script is copyrighted separately from the actual performance, as are the costumes, the props, any recordings, and so on.

- Of course, you can get away with it if the person whose copyright or trademark you are breaching does not care. Some artists blatantly infringe intellectual property laws, but do it with enough charm to get away with it. To use another Warhol example, Campbell Soup had reason not to mind being transformed into an iconic American brand. Relying on charm, however, might be a little bit foolhardy, especially if you ever intend to make money from your work. 

- If your practice involves performance and you want to protect or market it, you might have to find new and innovative ways to legally define, sell and copyright your work. Some interesting examples of well-known artists who have found creative solutions to the undefinability of performance art include Marina Abramović and Tino Sehgal. 

Want to know more? Artquest is a great source of legal advice, much of it written by Henry Lydiate himself. Check it out here.

FuelRCA also holds regular legal clinics – look out for them next academic year.