Idea/Expression Dichotomy

This year marks the centenary of the creation of a work widely accepted as the most influential of the 20th century: Marcel Duchamp’s Fountain, 1917. This readymade and its reception heralded the transformation of modern and contemporary art from traditional aesthetic appeal to the spectator’s senses via the eye, to anti-retinal engagement of the spectator’s intellect. In particular, contemporary art practices throughout the five decades since Duchamp’s death have increasingly placed emphasis on ideas and concepts rather than forms.

However, artists’ ideas and concepts are not yet recognised and protected by intellectual property laws, copyright in particular. Laws inevitably play catch-up with society’s developments, and rights of authors are a notable example. The world’s first copyright law was passed in the UK by its Parliament of 1709/10, and gave authors exclusive legal rights for a limited period of time to protect and control merchandising of their works. Similar laws spread throughout developing industrial economies, and now exist and are enforceable worldwide. Over time national and international copyright laws were improved to embrace new and developed forms of creative activity – but only after such forms had become well established and recognised by the creative community in question. The key criterion for copyright law’s recognition of an author’s work was indeed the form or medium employed, such as still photography or moving images on film or sound recording. Law-makers have always specified forms of creativity for copyright protection in order to observe ‘aesthetic neutrality’; in other words, a work will be copyright-protected whether it is artistically good or bad or indifferent, so long as it is expressed in a legally recognised form.

During the past three centuries copyright law-makers have experienced little if any difficulty categorising works as music, literature, dance, mime, drama, film or combinations of them. But visual art has always presented more legislative challenges, so ‘artistic works’ have invariably been sub-divided into forms such as painting, sculpture, graphics, photography, architecture, collage and ‘non-utilitarian works of applied art’.

Copyright legislation further buttressed its form/medium categorisation of works by a requirement that they are fixed in material form; in other words, copyright protection would be given to classified creative forms only if courts of law could see, hear or read them. So the three guiding principles of copyright legislation – aesthetic neutrality, form/medium categorisation and fixation – served authors well into the 20th century, and most authors up to today. But the radical changes and development in the nature of visual art practice in recent decades – from the emphasis on traditional forms to ideas and concepts – challenge copyright law’s traditional guiding principles and fitness for purpose.

In addition, a work’s legal ‘originality’ has been a longstanding fundamental requirement for achieving copyright protection. In the UK’s first copyright law of 1709/10 there was no originality requirement, but the Sculpture Act 1814 and Fine Arts Copyright Act 1862 introduced the requirement by specifying protection for authors of ‘original sculptures, and every original painting, drawing and photograph’. Subsequent replacement copyright laws of 1911, 1956 and 1988 retained the originality requirement. The Anglo legal approach for a work to pass the ‘originality test’ requires two essential elements: its visual characteristics must not have been ‘slavishly copied’ from the work of another author/artist, and it must have been created by the exercise of ‘independent skill and labour’ of the author/artist. In effect, these two criteria amount to the same thing, which is often pithily characterised by saying the work results from ‘the sweat of the brow’.

Non-Anglo copyright laws also require originality, but their legal approach to its meaning places much more emphasis on the author/artist’s personality. This approach is characterised by the name given to copyright in non-English language countries: the author’s right (eg le droit d’auteur or il diritto d’autore). This approach developed throughout the 19th century and is succinctly described by the French intellectual property jurist Professor Henri Desbois as ‘any creation that is not the simple reproduction of an existing work and that expresses its author’s taste, intelligence and know-how, in other words his or her personality in its composition, is original’.

Although both legal approaches differ in emphasis and language, in practice they amount to more or less the same thing: judge the work’s copyright originality not by its ‘artistic’ merit or its novelty (as with industrial Patent and Trade Mark laws), but by the personal expression of the author/artist in the fixed form of artwork category. Traditionally this requirement was straightforwardly satisfied by work being made under the ‘hand of the artist’ and being wet-signed accordingly. But in recent times de-personalisation of the ‘hand of the artist’ together with the increasingly common practice of works not being signed in the traditional manner presents serious challenges to copyright law’s traditional originality requirement.

Contemporary art practices continue to challenge the fitness for purpose of national and international copyright laws that were conceived in the 18th century, forged in the 19th, but which in the 21st century languish in norms of the 20th. Perhaps copyright’s personality requirement could be a useful starting point for reform: instead of requiring the hand of the artist to make and sign a work, the law could consider the identity of the artist who conceived the work and authorised its execution (say by external fabricators or independent contractors); in this way ‘readymades’ like Duchamp’s Fountain would be embraced rather than being consigned into a legal vacuum.

Meanwhile, courts faced with claims by artists that their ideas and concepts have been stolen by, say, other artists or more often by the advertising and film and media industries, could perhaps take inspiration in their judgments from the remarkably enlightened approach of the court in the landmark 1928 lawsuit brought by Constantin Brâncuşi against the US, which had impounded one of his bronze casts of Bird In Space, 1923, that had been imported from France by a US-based collector. The only issue before the court was whether the work was legally ‘art’ and exempt from import taxes or was ‘an article of utility’ and taxable as US Customs had claimed – ‘If that’s art, hereafter I’m a bricklayer … dots and dashes are as artistic as Brâncuşi’s work.’

The court’s judgment relied strongly on the intentions of the artist, and the opinions of eminent art experts. It held: ‘There has been developing a so-called new school of art, whose exponents attempt to portray abstract ideas rather than to imitate natural objects. Whether or not we are in sympathy with these newer ideas and the schools which represent them, we think the fact of their existence and their influence upon the art world as recognised by the courts must be considered.’ The court concluded: ‘The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.’

© Henry Lydiate 2017

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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.