Art & Copyright

Most UK lawyers know little about intellectual property law, because it has never been a compulsory subject for professional qualification.

Simon Stokes, Art & Copyright, Hart Publishing, Oxford and Portland, Oregon, 2001, 184pp, £25.00, 1 84113 225 X.

Of those who do acquire the knowledge, experience and understanding, they invariably do so by joining solicitors' firms or barristers' chambers which already specialise in the subject and have done so for many years. Such job opportunities are few and far between and are fiercely competitive and the financial rewards can be great; intellectual property lawyers are a rare breed in the UK.

Of those few who do profess the expertise, only a minority specialise in intellectual property law relating to the visual arts (which is by no means as lucrative as copyright law practice relating to, say, music, film or broadcasting). It is refreshing, therefore, for one of these specialist practitioners to write a detailed and extensive exploration of the UK law of copyright and related rights 'as applied to art . with a stress on "fine arts" '. Simon Stokes is the son of an artist, a solicitor and partner in the London law firm of Tarlo Lyons. He is also Assistant Editor of the journal Art Antiquity and the Law.Stokes seeks to 'broadly' define 'fine arts', by reference to the Concise Oxford English Dictionary, as those 'appealing to the mind or to the sense of beauty . especially painting, sculpture and architecture'. And exempts himself from dealing with 'utilitarian or mass-produced items, except to the extent those comprise art - "ready-mades", for example'. He takes as his rationale for tackling this tortuous subject matter the growing demands of the Internet, commercial activities of museums and galleries, the increasing awareness by artists of their rights, current debates about appropriation by artists of others' works, and the now well established legal discipline of artlaw. 'For many years copyright was the Cinderella of intellectual property law, overshadowed in importance by patents and trade marks. However, the advent of digital technology means copyright now has centre stage - those seeking to protect and exploit their works on CD-Rom, DVD, other new media and the Internet increasingly need to rely on copyright'.

Stokes addresses the customary conflicts between users of visual works wishing to claim that their dealings have been 'fair' (though unauthorised by the copyright owner) and the absolute right of the originator to be paid for commercial dealings with their works. Written with a self-confessed 'legal approach', with helpful (to the lawyer, at least) legal references and bibliography, Stokes offers other perspectives - economic, sociological and cultural - which render the finished work accessible to the non-lawyer reader. For lawyer-readers, the law is stated as at January 2001.

The contents are wide-ranging and ambitious for the subject matter, logically laid out (although the design and format of the pages is packed in very dense paragraphs which would benefit from more labelling and signposting). Footnotes are extensive and excellent stimulation for wider reading and research. 'The Copyright System: Its Justification and History' is the first of four meaty sections dealing variously with: the modern law of copyright in the UK; moral rights and droit de suite/resale royalty right and art and the Internet (copyright, related rights and digitisation).

A chapter dealing with 'Some Current Issues' looks in greater detail at the celebrated US case of 'The Bridgeman Art Library Ltd v Corel Corporation', decided in 1999. This surprised the visual art community, photographers and picture libraries in particular: the picture library sued a software house for copyright infringement, alleging their unauthorised use of the picture library's photographs of old paintings (which were themselves out of copyright). The court found that the picture library was not entitled to claim copyright in their photographs (of the old paintings) because the resulting transparencies were not 'original' (ie the images were substantially derived from the paintings). Accordingly, Bridgeman lost its case.

In the same chapter a very informative section looks in detail at contemporary debates over ready-mades, assemblages, 'appropriation art', and so on, and provides a useful commentary on the use by the advertising industry of work by Gillian Wearing and Mehdi Norowzian. Although now sub judice, the issues involved in Glenn Brown's appropriation of the illustration by Tony Roberts in his Turner Prize entry Loves of Shepherds, 2000, are addressed in detail - from a maker's as well as a lawyer's perspective.

For any lawyer or law student wanting to develop an expertise in artlaw, this book is an excellent primer/starting point; for the artist or arts administrator, it may be too dense and impenetrable - at first glance - but would reward those who persevere.

© Henry Lydiate 2002

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.