Home Intellectual Property Law IPR and contemporary art and design : the interplay

IPR and contemporary art and design : the interplay

July 19, 2021

1913

This article is written by Disha Mazumdar from HNLU, Raipur. The article elaborates on the grey area between IPR and contemporary art and design and how a holistic approach is needed to bridge the gap between the two.

Table of Contents

Introduction

Recently, when an artist created a magnificent piece of art from the memes, it went viral and people couldn’t stop themselves from appreciating his art. The artist did not make something that was new rather he reinvented the old work with his own set of ideas. But are ideas protected under IPR? Such instances bring us back to the debate of IPR rights to contemporary artwork and design where the rights of the original author are subject to conflict. Such expression is evaluated by the courts depending upon the facts and circumstances of each case which is unique in itself. IPR for contemporary artwork and design needs a holistic view of the legislatures to balance the rights of creators and inventors.

IPR and its involvement in contemporary art and design

To understand the existing differences between IPR and contemporary art, we need to understand what contemporary art and design are and how it is different from traditional art. Contemporary art and design are creative ideas that are unique and are expressed in their way. The creator bases his or her work on the elementary skeleton of the previous creative work. Such forms of art and design are the reinvention or restructure of the old creation but the ideas which the creator or the inventor have to create are the real asset. Although expressing the idea is a supplementary part, the idea in itself becomes a substantial part and is capable of multiple interpretations by different individuals. Some of the examples can be:

Illustration 1: When the creator tries to convert an old painting into a graphic form by the use of technology and makes something that is a completely new idea in itself it can be called a contemporary design.

Illustration 2: Public performances where the participants enact a play and the background of such play has been taken from an ancient poem, but the artists cultivated a completely new idea to express themselves is another form of contemporary art.

Use of space in such a way to spread awareness, creating a hybrid mixture of art is also a way to express contemporary artwork and design. Contemporary art in itself brings a question of chaos in the world of IPR as it lays its foundation on an earlier work present in the public domain and can challenge the rights of the earlier author.

Evolution of IPR

Though Intellectual Property has helped us protect the rights of individuals in the era of globalization and industrialization, its origin goes back to the age of civilization. The first patent rights were granted to the bakers in Greece over a culinary invention for a year. Although the people in Greece believed such creations to be a gift of God and sacred, this led to the further development of the Intellectual Property that we know today. The creators or the inventors when they use their intellect to create something unique and creative, they are protected under the IPR. Such protection not only protects the moral rights of the individuals but also gives them economic benefits from their creation or invention. Such protection acts as a dual benefit for society. Firstly, it helps to encourage more people to participate in research and development and protect their work from exploitation and secondly, it helps in the economic growth of the country and promotes the research and development sector.

Paris Convention, 1883 was a union of member countries who came forward to protect industrial property such as patents, trademarks, industrial designs, and other forms of intellectual property by enacting legislation to prevent unfair usage. National treatment, right of priority, and common rules were its three grounds.

Berne Convention, 1886 was held to discuss the need for protecting the rights and the work of the musicians, painters, authors, etc. from unfair use. National treatment, automatic protection, and the principle of independence were the three principles of the Convention.

World Intellectual Property Organization popularly known as the WIPO Convention 1967 was a convention to constitute an intergovernmental body where nations came forward to make laws and regulations to protect the rights guaranteed under IPR and participate in the administrative actions of the member countries. Later this organization became a part of the United Nations. WIPO replaced the earlier International Bureau under the Berne Convention and Paris Convention.

Understanding the grey area

The conflict between intellectual property rights and contemporary art and design is important for every country to settle. Creation and inventions help in the economic development of the country, generate employment and also give resources to build upon. But why are such artistic expressions of art and design not protected under the IPR? The following can be some of the reasons:

Contemporary art and design are more about ideas than about expressing the same. The mode of expression in itself is not important but the concept or the idea of the creation is fundamental. The creator tries to express and define himself through the creation and such creation tries to combine the old and the modern form of art. Ideas cannot be protected under the copyright rather the expression of such ideas can be protected. This builts a major roadblock for contemporary art and design to get recognized under the copyright laws existing in different countries.
The conflict with the moral rights which are guaranteed to the first creator or inventor can also be questioned if such contemporary artworks are recognized under the IPR. Intellectual Property Rights are basic rights (human rights) that are guaranteed to the author for their creation to prevent unfair use of such work. Contemporary art and designs which are a reinvention of the old work through new concepts and ideas are recognized then what happens to the rights of the earlier creator is the question of debate. It creates a dichotomy between the two rights of the past and the present creator and raises the question of infringement of copyright or trademark.
The impact upon the potential market is another factor to be considered. When a creator or an inventor creates or invents something unique their work is protected from exploitation and is paid a royalty for the use of their work in instances of commercial purposes. In case contemporary art and design are given protection what would be the effect on the market share of the creation. How would the customers react to such a change and would it lead to a state of confusion is some questions which have to be considered.
Copyright does not give protection to the ideas of the creator and hence the claim of contemporary art and designs to obtain copyright is a bit dicey. The problem also arises in the case of a trademark that applies the test of the distinctiveness of marks and designs. Further, the creation has to be clear and not arbitrary but contemporary art and designs are not clear equations rather they are dependent on the interpretation drawn by the individual themselves.

Test of substantial similarity

Whenever the court decides upon the issues of copyright infringement, it applies the test of substantial similarity to conclude how identical both the works are. The application of substantial tests determines whether the substantial work of the creator has been copied or not and is dependent on a case-to-case basis. In many instances, the substantial work of the author has been used intentionally for specific purposes such as education, research, creating awareness, criticism, etc. which fall under the category of fair use and acts as an exception to copyright infringement.

The first part of the test which is used by the court is the test of lay observers. If any ordinary observer gets confused after looking at the art or design and compares it with other existing work then it lays the foundation of substantial similarity.

The intrinsic and extrinsic tests further determine the creation in two ways: firstly, it considers the general idea of the work in question and also whether the similarity exists in the part which is protected under the law. This test applies in the case of books, arts, poems, and other literary works.
The third test is the abstraction-filtration and comparison test which is a three-step process and used in computer works, especially the non-literal elements of computer work. Firstly, the computer program is searched for the ideas which have been expressed by the creator, secondly, after such abstraction parts which are protected are separated and the remaining is filtered and then at the third stage, such filtered material is compared with the other material which has led to the dispute.

All these tests are used by the court to determine the similarity quotient. In all the above cases, the ideas are not protected rather the expression of such ideas is protected. Ideas in themselves are broad and unique which cannot be restricted. Sometimes taking instances from a poem and converting it into a play with different titles can lead to infringement but in other cases using a poem to make a meme cannot be considered to be an infringement of copyright. Hence these tests are applied and interpreted depending upon the work in question and circumstances attached to it.

Contemporary art and fair use

IPR protects the creator’s work from exploitation and also gives economic incentives for the use of his work. Fair use is an exception to the infringement of copyright where an individual intentionally can use the creation or invention of the creator for his purpose. It is not like a substantial similarity test which is a test applied by the courts to determine infringement in copyright. But how can we determine whether the use of the work is fair?

The doctrine of fair use is a judicial development in the case of Folsom v. Marsh (1841) where the court granted an exception for “socially laudable purpose” and recognized the doctrine of fair use. Earlier this was not a statutory right but the protection given by the court itself. Later, Section 107 of the U.S Copyright Act, 1976 lays down four grounds to determine the use as fair use. The term fair use is used in common law countries like India and UK as fair dealing but these terms are not interchangeable. Although both act as an exception to the infringement of copyright there are certain differences in them. The activities which fall under the term fair use are not exhaustive in nature rather it is an open-ended list on the other hand the doctrine of fair dealing would cover only those acts which are stipulated under the legislation making it narrower. The U.S Copyright Act gives us a clear four-step test to determine the work as fair use. These four steps are:

The purpose of the work

When an individual uses others’ work it is important to determine the purpose of such use. It can be for commercial use or it can be for non-profitable use. Commercial exploitation of work does not fall under fair use.

The nature of work

The work for which it is being used determines the nature of work like for educational purposes or research purposes or simply selling the work. The purpose and nature of the work are connected.

The proportion of work used

The portion of the work which has been used in comparison to the copyrighted work as a whole is also important. If the whole work is copied and used rather than some part for reference then it also can be termed as copied work.

The effect on the potential market

The market validity and use of the creation give economic incentives to the creator and if the use of his work is utilised for other commercial purposes which can affect the market economy, then it is devoid of fair use.

The question of fair use was debated in the US case of Cariou v. Prince (2013) where a suit was filed by a photographer against an artist who created a unique art from the photographs which were protected under the Copyright Act. While the district court granted an injunction and awarded compensation to the photographer the court of appeals did not agree to the same. The issue was raised whether the artist can claim the defence of fair use for his artistic work against the photographer?

The court reused the concept of “transformative use” which had been earlier used by Judge Pierre N. Leval which determined whether the copied work is transformative in nature or not. It should be used for a very different purpose from the original work and should not be a mere quoted work rather a different interpretation of the creators. The photograph and the artistic work have not related to one another as both had different aesthetic values and compositions. It was also held that the art market was completely different from that of the photographer and the target audience also varied which did not affect the economic incentive cultivated by the photographer. Further, the Copyright Act itself promotes derivative work and contemporary art and design cannot be restricted based on reinvention provided they are transformative in nature.

Conclusion

The creators and inventors invest their time, effort, and money to create something unique through their ideas and expressions. Such expressions should be protected and recognized under the law rather than restricting them. Contemporary art and designs are unique because the ideas and concepts behind them are unique. Such ideas create a very different interpretation and meaning to the artwork. Contemporary art and design can also include a reinvention or reinterpretation of cultural and traditional art which seldom gets recognition in the global market. Contemporary art and designs can be a way of expressing the old form in a transformative way to make the customers aware of the rich culture. IPR laws need to be more holistic in their approaches and try to encourage such cultural and modern expression of art and designs.