Twentieth-century visual artists’ propensity for introducing modern technology into their creative processes not only poses problems for traditionally-minded perceivers, but also in other even more conservative areas – especially the law.
Because something is happening here
But you don’t know what it is
Do you, Mister Jones? *
Not well-known for its speedy, creative or radical adjustment to changes in society, it is not surprising that a vital area of law – copyright of artistic works – remains shackled to a nineteenth-century artistic tradition. This now causes serious copyright difficulties for the modern practitioner – both artist and lawyer; holography is a case in point.
The use of light directed at a plate producing an image is not a new idea – photography has been around for years – but holograms are not images fixed in a material form; they are light. Is there copyright in artistic light?
If artworks do not fall within the meaning of ‘artistic works’ defined by the Copyright Act 1956, they will not be protected by the law from unauthorised reproduction. There are two groups of ‘artistic works’ which need to be examined: works in traditional media; works of artistic craftsmanship.
If a work is made by one of the following traditional processes, it is an ‘artistic work’ and capable of copyright protection: painting, drawing, sculpture, engraving and photography. (Before considering the position of the hologram, it should be remembered that any views, arguments or propositions must be based on the likelihood of persuading a late middle-aged. English judge that they have merit; judges follow precedent whenever possible).
Hologram is not defined by the Oxford English Dictionary. Any proposition that a hologram is a painting or drawing must fail. A better argument could be made for a hologram being a sculpture, but the O.E.D. speaks of carving or engraving material, and so this proposition is equally likely to fail. It could be an engraving, but that is doubtful: the Copyright Act defines engravings by reference to any etching, lithograph, wood-cut, print or similar work not being a photograph. This family of printmaking processes is unlikely to be adjudged to include a sibling produced by light; and anyway holograms feel more like photographs or works produced by a process akin to photography.
In fact, the Copyright Act defines a photograph as any product of photography or of any process akin to photography. So why not a hologram: light directed on to a plate producing an image. The O.E.D. defines photography as ‘the process or art of producing pictures by means of the chemical action of light on a sensitive film on a basis of paper, glass, metal etc.; the business of producing and printing such pictures’. Holography is understood to be the process or art of producing pictures by means of the non-chemical action of light on a sensitive plate, the business of producing (though not of printing) such pictures. A good case, it may be felt, of kinship. What could be more akin than the production of an image by light on a plate?
A counter-argument, however, could well be made out. A judge might consider that a non-chemical action of light on a plate producing an un-fixed image is not a kindred process; the essence of photography, it might be said, is the chemical action of light on a sensitive film producing a fixed image on paper, glass, metal and so on. Although the sensitising of the holographic plate does fix an image ‘inside’ the plate, the trouble is that no-one can see that it is there for the purpose of copying it – the raison d’être of our copyright law: an image fixed on a photographic negative or positive can be seen and easily copied, and therefore is protected. The holographer, like the photographer, seeks protection for his image but, unlike a photographer, he does not use paper, glass, metal or even a screen to hold it or show it. For these reasons, there is a reasonable prospect of a judge’s ruling that a holographic image is not fixed at all so as to be capable of visual copying, and therefore is not entitled to protection as a sibling of photography.
Having considered the traditional media group, and neutrally concluding that a degree of uncertainty exists, all is not lost because there is a second group of ‘artistic works’ entitled to protection: works of artistic craftsmanship.
Works of artistic craftsmanship
The arguments about traditional media, though not producing a satisfactory result, are still of some value because any work not falling within the traditional media group may be protected as a work of artistic craftsmanship – so long as the maker intended the work to have aesthetic appeal through the medium of the eye. This curious qualification (not required for a work made in the traditional media) was intended to discriminate against works of craftsmanship made solely for industrial application.
Beyond that qualification there is no further help from legal precedent or the statute to define such works. The proposition that a hologram is a member of this mongrel family might appear to be easy to sustain: a judge may well be persuaded that the work qualifies as ‘artistic’ because of the bona fide artistic intent of the maker; ‘craftsmanship’ should be easy to prove. However, trouble may arise, once again, from the need for a ‘material form’. A thread runs through the Copyright Act which requires all works to be fixed or made in a material form, in order to qualify for protection. The issue can be put simply: is light a material form entitled to copyright protection?
The absence of any precedent to assist in answering this question forces the use of analogy. Perhaps a learned judge would enjoy taking a parallel excursion into the field of music, another art which does not exist in a material form yet can be experienced through the medium of the ear. Makers of original pieces of music can now use acknowledged notation techniques to fix their works in a material form and so gain protection for the music based upon copyright protection for the notation or manuscript. Light, so far as we are aware, is not capable of such notation and therefore lacks that protection. But we all know that techniques have been developed for recording and reproducing music, and the law has given protection to the recording itself which, again, indirectly but securely protects the original work of music; although light is capable of being recorded on sensitised film or plate, the making of a photograph or film of a holographic image merely records it in a two-dimensional form – thus failing to fix in its true dimension the more-than-two-dimensional holographic image. (In fact, this is a very fruitful area for the holographer who may well achieve if not total then a high degree of protection by filming or photographing the hologram before anyone else does so; in that way a later unauthorised reproduction of the hologram by another is likely to be an infringement of the original holographer’s copyright in his film or photograph.)
This musical analogy shows the careful provision made by the law to protect an art form produced by a process akin to holography: artistically organised sound processed through technology to reach the ear. A hologram is artistically organised light processed through technology to reach the eye. The sound is protected, why not the light?
An advocate of the artistic craftsmanship view might also put forward the awkward consequences of a judge ruling a hologram to be a photograph, because the first owner of copyright in an uncommissioned photograph is the owner of the material on which the photograph was taken: a hologram is not taken or made on material, but simply exists as light; is light capable of ownership?
Perhaps these propositions might persuade a judge to find that a hologram is a work of artistic craftsmanship and therefore entitled to copyright protection as such.
So far only the holographic image has been considered. Many artists use holograms or merely light itself as an element of a construction, installation or environment. In such cases, there is an even stronger argument that the whole piece (including the light and/or hologram) is a work of artistic craftsmanship and therefore protected.
The Copyright Act 1956 is seriously out of date and in urgent need of reform; it should, but does not, clearly and with certainty accommodate and protect all the works of visual artists in any medium – existing or as yet unknown. Perhaps ‘artistic works’ could be replaced by ‘visual artworks’, meaning ‘any manifestation intended by the author to have aesthetic appeal through the medium of the eye’. Life would be so much better.
© Henry Lydiate 1982
*© M. Witmark and Sons 1865