In modern society; the copyright system seems to restrict the development of the contemporary arts. A pragmatic relationship between the artist and the artwork is created by copyright as it relies heavily on the idea of intellectual property law. An issue with the copyright act is that the meaning of artistic work is only limited to a few definitions. Contemporary art practices unsettle the doctrinal certainty of copyright. It is seemingly apparent that modern artists are unable to receive protection, so, therefore, utilise previous artistic works due to the limitations of the Copyright, Designs and Patents Act 1988. The growth of digitalisation does not aid in protecting the artist because digital copies can be easily created and reproduced. This issue is a significant reason why modern visual art is repressed and cannot truly develop.
This is backed up by the way copyright evaluates the visual arts by utilising an approach which has been taken from theories of art, mainly from the areas of contemporary and Appropriation arts. Jeff Koons and Sherrie Levine are modern artists who challenge the legal concept as to what is to be taken as ‘art’ and what is to be protected by copyright, with an intention to protect those who are not included in the vision of modernism. This is portrayed by some of their work which is critical of the legal position and how it impacts upon modern visual arts.
One type of contemporary art is performance. This “live art” is strongly defined by the artist’s commitment to their own work. The artist will appear on stage, and they may not be alone as occasionally there will be some public participation in order for the work to exist. This was the case of a performance carried out by Marina Abramovic titled “the artist is present” (2010) where she was seated in a chair in the Museum of Modern Art in New York for two months for more than 700 hours. Spectators would sit in front of her, sometimes for hours without talking. When analysing this work, must it be asked what are the limits of participation? Are the spectator’s owners of this work? Does this work need protection? The UK law protects the creator and the author of the work and the law of copyright is covered under the Berne convention.
Article 2 of Berne states that “the expression, “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” When determining copyright protection most States do not discriminate between the actual quality of artistic works, it just has to be an “artistic work” and not one of a certain quality threshold. This is also the case in the UK due to the fact that “artistic works” are protected no matter what the quality of the work may be. The Copyright, Designs and Patents Act 1988 (CDPA), ensures that works are protected “irrespective of artistic quality.”
The statute of Anne (1709) guarded the rights of art works and a series of statues protected engravings in 1755. Lithographically produced prints or prints produced by alternative mechanical processes earned protection from the ICA in 1852. The primary step towards a more modernised statute was the Copyright Act 1911. In 1956, the law took further technological advances into account. Finally, after several other legal changes during the 70’s, the CDPA was adopted by the UK.
Vigilance of “Intellectual property rights” by designates of forfending expressions of artistic characters as cited can be sourced from the CDPA. “No copyright can subsist in a work engendered as a true collective enterprise (rather than by one or more identifiable or incognito ‘authors.’)” For “artistic works” to be copyrighted they must slake the qualifying factors: firstly, it must be an “original”; it must be a “work”; it must be “literary” ; it must be capable of being “fixated” and has to be “qualified” in order to slake the copyright aegis criterion. Copyright can only subsist in certain classes of works, exhaustively defined in s1 of the CDPA.
Various artistic works are combined together by the CDPA. Section 4 of the act defines the various categories of artistic works. Developing artistic techniques challenge the CDPA and what is likely to fall within the relevant category of subject area. This should be considered greatly, due to the fact that the way contemporary art continues to progress. For example, the oeuvre must be fixed which excludes, body art, land art, and performance art in general: works which are not original, excludes the readymade and appropriation art in general; “Copyright does not protect the ‘basic’ components of cultural productions.”
The normal origination of the importance of ‘original’ is something that is new which has not been made previously. The CDPA unmistakably expresses that copyright will subsist legitimately in “original literary, dramatic, musical or artistic works.” However, ‘original’ isn’t characterized inside the Act. It is just through case law that the valuation for the legitimate implying that the law has appended to this term can be resolved.
In the case of University of London Press Ltd. v. University Tutorial Press Ltd Peterson J. stated that: “The word ‘original’ does not in this connection mean that the work must be the expression of pristine or inventive thought, and, in the case of ‘literary work’, with the expression of mentally conceived in print or indicting. The originality which is required relates to the expression of thought.” It is verbalised here that the originality required by the law is not that of revolutionary incipient conceptions but of the way that the idea is expressed. Peterson J. perpetuates: “the Act does not require that the expression must be in pristine or novel form, but that the work must not be replicated from another work – that it should originate from the author.” In order for a work to gain copyright, it must originate from the author – the recognised licit meaning of ‘original.’ The conceptions expressed within the work do not themselves have to be incipient, but the way in which they are conveyed to the audience does: ‘copyright law does not require that a work should be unprecedented, that is, incipient in comparison with already subsisting works…A copyright…is good provided an ample amount of work was originated by the author independently, even if some other person had already engendered an identical piece by sheer coincidence.’