Copyright Law and the Claims of Art

Abstract

Copyright law in the United Kingdom has a troubled relationship with the visual arts. Though ostensibly designed to encourage their progress in an even-handed and value-neutral manner, it effectively discriminates between them: it protects the established arts of painting, sculpture, architecture, photography and drawing, for example, but implicitly excludes some contemporary practices in the visual arts completely (e.g. body art, land art, and performance art in general); radically limits the protection available to others (e.g. installation art, conceptual art, minimalist art); and condemns outright those forms which contradict its rules (e.g. appropriation art). Much critical commentary on copyright tends to attribute these apparent prejudices to a "Romantic" aesthetic which is said to be embedded in the law's conceptual structure, and which causes it to promote only those forms of cultural expression that are perceived to generate unique works of pure, unmediated individual artistry. It will be argued here that this explanation is at best incomplete. First, it is sustained by an exclusive focus on the category of authorship in copyright law - the "subject" of copyright law - and a tendency to overlook the ways in which the protected work - the "object" of copyright law - is defined for legal purposes. Focussing on the latter reveals that there are certain affinities between the way copyright law defines artistic works for the purpose of identifying these as possible objects of a property right, and the way Modernist art theory and criticism defines the art work for the purpose of identifying its aesthetic limits and possibilities. Second, these legal definitions have not been given by aesthetic theory, whether Romantic or Modernist. The law's categories are best understood in their singularity: as products of values that are peculiar to the legal system; a history that is peculiar to the copyright system; and a logic of property that is simply not reducible to the logic of aesthetic judgement. Third, there is no necessity to the shape these categories have assumed. In other words, it may well be possible to find in copyright doctrine itself the conceptual resources for a radical rethinking of copyright law's role in relation to visual art in particular and the sphere of culture in general.

JEL Classification: K1