Art & Copyright, by Simon Stokes

Abstract

One has to be aware of certain limitations of the scope of Simon Stokes’ book ‘Art and Copyright’ right from the beginning: what the title means by ‘art’ is broadly the visual arts and fine art, for example paintings, drawings, photographs, sculptures and installations. The book practically does not deal with music and works of literature, and there is very little engagement with architecture, dramatic works and films. The second limitation is that the book is not, whether intentionally or otherwise, directed at artists, art professionals, museum curators, gallerists and the like, but rather at lawyers who have dealings with such persons. It may even take some time for a complete novice to copyright, albeit a lawyer, to grapple with this rather slim, but fully packed volume.

How to Cite

Rahmatian, A., (2016) “Art & Copyright, by Simon Stokes”, Entertainment and Sports Law Journal 4(1), p.11. doi: https://doi.org/10.16997/eslj.109

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One has to be aware of certain limitations of the scope of Simon Stokes’ book ‘Art and Copyright’ right from the beginning: what the title means by ‘art’ is broadly the visual arts and fine art, for example paintings, drawings, photographs, sculptures and installations. The book practically does not deal with music and works of literature, and there is very little engagement with architecture, dramatic works and films. The second limitation is that the book is not, whether intentionally or otherwise, directed at artists, art professionals, museum curators, gallerists and the like, but rather at lawyers who have dealings with such persons. It may even take some time for a complete novice to copyright, albeit a lawyer, to grapple with this rather slim, but fully packed volume.

1

Once one has accepted these restrictions in scope, one will find the book enjoyable and very useful. The edition discussed here is the ‘revised paperback edition’ of January 2003 of a hardback edition that appeared in 2001. This is important, because it has to be borne in mind that the work does not, and could not, take account of the changes by the EU Information Society Directive 2001 or by the Community Designs Regulation 2002 within registered designs law which is briefly discussed regarding its points of contact with copyright law (pp56-59). The revised 2003 edition contains an update as an appendix (pp181-191) outlining briefly developments between 2001 and 2002 that do not otherwise change the original 2001 edition.

2

The book is a legal textbook specialising on copyright issues that arise in the context of the visual arts, museums and the arts market, and in this respect it fills very well an existing gap. It sets out the relevant law in considerable detail, but it does not give, nor does it purport to give, definite answers or cookery-book style recipes to certain typical legal questions artists and art professionals may encounter in their work. However, a useful ‘practical’ section contains checklists for loan agreements concerning artworks for museums, art galleries and art publishers (pp147-150), as well as further useful hints on the acquisition and use of image rights in the context of website design (pp150-152), on the issue of fair dealing (pp152-156) and on commissioned art works (pp156-159). Otherwise, in chapter 2 the book gives a brief and helpful overview of the history and justification of copyright and outlines the modern law of copyright in chapter 3, and in this regard it reflects the usual coverage of existing standard textbooks on artistic copyright. It then proceeds to deal with moral rights and the droit de suite (chapter 4), aspects of copyright on the internet (chapter 5), and new US copyright cases, such as the Bridgeman case, and the Arriba (visual search engine) case, and their relevance to the UK (chapter 6). The book also contains an insightful discussion of the problems of copyright protection of certain forms of modern art, such as appropriation art (which was part of the surrealism and pop art movements and especially exists in art under the influence of postmodernism), objets trouvés in Marcel Duchamp’s tradition, assemblages and minimalism (pp124-127).

3

While the exposition of the relevant law is generally commendable, the book may have benefited from a more detailed discussion of the way in which copyright treats concrete examples of visual art, that is, the way in which copyright conceptualises normatively a certain object of visual art. It would therefore have been useful to illustrate (literally) the workings of the idea-expression dichotomy by way of pictures of certain concrete works of visual art, and thus to show the actual scope of copyright protection and how copyright operates. This would make the rather difficult subject matter more accessible to both artists, who may know little about law, and lawyers, who usually know little about art. For example, the discussion of the idea-expression dichotomy especially on the basis of Designers Guild v Russell Williams (pp48-54) does not really fulfil this purpose, neither for non-lawyers, who cannot apply the law to their well-known facts (for example, what is a painting, how to create it, what is the artistic and what is the pure craftsmanship input etc.), nor for lawyers, who are perfectly at ease with the legal discussion of the case but who are often unable to translate the normative findings in it into a factual scenario, that is, a concrete installation or painting. (I have in the past explained the idea-expression dichotomy – unprotectable idea, protectable expression, use of pre-existing works – to an audience of visual artists on the basis of showing slides of traditional oil paintings by Turner, 20th century paintings by Mondrian etc., and collages by Schwitters.) Artists can then quickly see what the unprotectable ‘idea’ in the language of copyright constitutes: the underlying technique, craftsmanship, composition of an arrangement etc, which are all familiar to them as a result of their fine art training, and lawyers can get an impression what the factual equivalent of the normative definition of ‘idea’ in relation to visual art is or can be. Art historians’ discussions of underlying techniques and rules in concrete artworks, such as form, colour, space, perspective, texture, choice of subject matter, often give a good verbal indication of what copyright lawyers would call the ‘idea’ in a certain work of art.

4

Given the overall approach in the book as a rather concise treatment of copyright regarding the visual arts, a less extensive black-letter law discussion of certain specialist cases, such as Norowzian v Arks (pp128-134), would probably have been more advantageous. The analysis of this case is the only passage in the book which deals with film, and even then rather incidentally, because the discussion focuses on the artistic (visual arts) aspect of an experimental film, not on film copyright in general. Perhaps a more extensive coverage of film and video copyright would have been desirable, since installations and other works of visual art often have a significant film or video component. Furthermore, it is not entirely clear whether such an extensive discussion of the history and content of the droit de suite up to the present EU Resale Right Directive 2001 (76-86) is indeed necessary, while more complex and arguably more pressing issues, such as art in the context of computerisation and the internet, get rather a short treatment (pp87-99).

5

The book also deals briefly with areas other than copyright as far as they are relevant to the fine arts, especially the law of breach of confidence, passing off and trade marks. All in all, it is amazing how much useful and thorough information is contained in this rather small book, both in the main text and in the numerous and extensive references and source material. A new edition that takes account of the recent legal changes is eagerly awaited.

6
ANDREAS RAHMATIAN
University of Stirling

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Andreas Rahmatian (University of Stirling)

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