Journal of Intellectual Property Law & Practice Advance Access originally published online on January 31, 2006
Journal of Intellectual Property Law & Practice 2006 1(4):272-282; doi:10.1093/jiplp/jpl004
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© The Author (2006). Published by Oxford University Press. All rights reserved.
Art and copyright: some current issues1
*Simon Stokes, Visiting Research Fellow, Bournemouth Law School Tarlo Lyons, London, UK
Legal context IP lawyers are increasingly having to advise on art-related copyright matters. Current issues include the strong copyright protection given to images, uncertainty in the protection given to innovative contemporary art works, problems in applying the fair dealing exceptions to art works, and the increasing relevance of other IP rights.
Key points Image rights receive strong protection - photographs of public domain art works are protected in the basis of long-standing authority (although there are arguments against such a view). Whether an artistic work is protected by copyright depends on whether the work falls into the closed list of categories in section 4 of the Copyright, Designs and Patents Act 1988 (painting, drawing, engraving, sculpture, etc). Much contemporary art does not fall neatly within these categories. Categorisation will also be in issue as far as Artist's Resale Right is concerned. There is lack of understanding amongst internet artists about the copyright restrictions that apply to digital works and concerns are raised more generally about the lawfulness of appropriation art.
Practical significance Lawyers advising artists and those exploiting artistic works need to be aware of the potentially broad scope given in UK law to protecting works of art (including photographs of public domain works such as Old Master paintings) and to the conflict between copyright and the practice of appropriation art. Where infringement claims are being considered fair dealing arguments and the possible impact of human rights law in guaranteeing freedom of expression will need to be carefully considered. There has been little reported litigation on moral rights but this aspect cannot be ignored. Trade mark rights, design law and passing off may also need to be considered.