Law for Artists

Copyright, the obscene and all the things in between

Blu Tirohl

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415702539
• eBook ISBN: 9781317585152
• Topic: Art
• Subtopic: Art General

Written especially for professional artists and those studying the visual arts, Law for Artists is an accessible guide to those aspects of law that impact on artists and their work. It encompasses a comprehensive range of creative practices including fine art, photography, the graphic and plastic arts, animation, illustration, applied and media arts, as well as fashion, textile and product design.

As one of the few academics working in this field Blu Tirohl clearly explains the legal principles - such as intellectual property, censorship, freedom of expression and criminal law - that are relevant to artists working in a range of disciplines. In order to illustrate these key concepts the book includes an engaging collection of examples of artists who have come into conflict with the law, demonstrating precisely the challenges faced by creative practitioners. The author also explores how the establishment co-opts transgressive artists; bringing about a range of contradictions that create legal inconsistencies.

While the focus is primarily on UK law, the reader is also given ample information to understand how European law affects them. An entire chapter is also dedicated to the comparative study of US Law through well-known cases, ensuring students have a well-rounded knowledge of the concepts that they need to consider in a professional context. The book also provides additional resources including a list of useful websites, a glossary of key terms, as well as a list of statutes and cases.

Law for Artists is an invaluable resource to professional practitioners and art graduates, as well as the academics who instruct them. This insightful publication, the first of its kind, helps introduce artists to the professional practice skills needed to ensure they are well-equipped to deal with working life.

1 Art as intellectual property

DOI: 10.4324/9781315742106-2

Introduction

In 1980, Frusen Glädjé (but for the accent on the ‘e’, this means ‘Frozen Joy’ in Swedish) were sued unsuccessfully in the US by Häagen-Dazs (which is not Danish for anything)¹. Häagen-Dazs claimed that Frusen Glädjé had infringed its intellectual property rights by promoting a product associated with Scandinavia, with which neither party appeared to have any links. Häagen-Dazs did not succeed, in part because in marketing a product trading on Nordic origins that it did not have, it had not come to litigation with clean hands. The ice-cream manufacturers appeared to be claiming a right in the use of wording made to look ‘a bit Scandinavian’.

There are few creative practitioners for whom intellectual property is not relevant. While philosophical and critical reception may be ample reward for many, we would be naive if we believed that artists do not have to make a living. Some of what a creative practitioner earns will come from the physical objects sold. These are known as tangible objects, physical property, chattel, personalty, the concrete thing – you will see a range of terms for these. These tangible objects, though, can carry something else that gives them value; it is intangible but embedded in the creative work and cannot exist without it. This intangible thing has a separate legal existence to the tangible thing and is referred to as intellectual property (IP). It only comes into existence when the idea that the creative practitioner has is reduced to a tangible form. The creator of an artwork is generally the first owner of the IP attached to it. If you tell another person of your idea and they develop it for commercial exploitation, you may have no protection in intellectual property law. In Brighton v Jones,² for example, a director's suggestions to a playwright did not entitle the former to claim co-authorship of the work. Sometimes breach of confidence, or the formation of a contract, will give rise to protection for those who have conveyed ideas to others; this is looked at in Chapter 3.

Section 1: a brief history of intellectual property

In the Australian case of Twentieth Century Fox and Matt Groening v South Australian Brewing³ there was a successful claim by Twentieth Century Fox and Groening that led to the restraint of specified breweries from dealing with a drinks can associated with the animated series, The Simpsons.⁴ A range of accusations, that often accompany intellectual property infringements, were made such as deceptive conduct, passing off and breach of Australian trade law. The use of the name Duff was particularly pertinent to the case; the attachment by one of the fictional characters (Homer) to this beer being notable.

The most important source of IP law, internationally, is the Berne Convention 1886⁵ which outlines principles for its member state signatories. It provides the owners of IP with the right to start legal action in any jurisdiction that is a signatory to the Convention (‘reciprocal protection’). In its earliest form, Berne outlined some basic features of IP: that it should not be subject to excessive formality, that protections should be automatic and that there should be some exceptions permitting the use of protected work by others where there is no conflict with the author's rights. In 1961, the Rome Convention extended these rights to phonogram producers, performers and broadcasters. In addition to the Berne Convention, there is a UN Agency which supervises IP Treaties; the World Intellectual Property Organization (WIPO) based in Geneva (established in 1967) and a 1995 agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) implemented much of the Berne agreement more widely.⁶ TRIPS is operated through the World Trade Organization (WTO).

IP law was developed to control what can be done to/with/about a work of art or science. It is not necessarily sold when the physical object is sold; in English law it is only conveyed (given or sold) if there is something in writing which states that this is so. There are four forms of intellectual property in English law and these are copyright (Section 2), designs (Section 3), trademarks and patents (Section 4). Copyright and designs are the two forms of IP that will be most important for the readers of this book so much more time will be spent on these. However, there are circumstances in which some artists will need to know of the principles of trademarks and patents so these are also covered to a more limited degree.

The detail in which you read each section will depend on what type of creative practitioner you are; in particular, whether you consider yourself an artist or a designer. Section 2 (copyright) will have particular relevance to students of the fine, graphic, plastic or three-dimensional and photographic arts as well as print-makers, illustrators, film-makers, animators and curators. Section 3 (design rights) will have more applicability to textile, fashion, furniture, interior and jewellery design students, although an understanding of copyright is also important to this field (it means that the latter group of creators have twice as much reading to do). Section 4 (trademarks and patents) has more applicability to product designers and those intending to work in global fashion and textiles; an understanding of design rights is still important. It is unlikely that you will want to read all sections in one sitting.

IP is a powerful asset to have control over; mostly, you will be advised not to give it away or sell it and this means reading a contract before signing it (see Chapter 3). If someone exploits your intellectual property without your consent, it can be expensive to prevent them from doing so and gain the monies you should have had from its use.

Section 2: copyright

In 2006, mathematician and graphic artist Robert Dixon argued that a piece of his work was the source for Damien Hirst's print Valium. The work by Dixon appeared in the 1991 book The Penguin dictionary of curious and interesting geometry. These images can be seen at http://www.standard.co.uk/arts/can-you-spot-the-difference-7190471.html. Since the research trail goes cold for this case during 2006, it might be assumed that the case was settled before legal action was taken.

Copyright protects the expression of an idea, not the idea itself. This is widely referred to as the ‘idea–expression dichotomy’ (Bently and Sherman 2009: 182); it creates difficulty for those seeking to understand case law, and sometimes it may appear that a court gave protection to an idea rather than the expression of it. If the reader becomes confused then they are in good company; the idea–expression dichotomy goes to the heart of many contemporary debates about IP.⁷ For example, in the case of Temple Island v New English Teas,⁸ an image of a red bus on a monochrome London landscape was held to be protectable under IP law and since there was a substantial similarity between the work of the defendant and that of the claimant, the patents County Court found an infringement. Since the existence of colour on a black and white background has a lo...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• Abbreviations
• Introduction
• 1 Art as intellectual property
• 2 The obscene and the unseen
• 3 The use and misuse of information
• 4 (Un)commissioned art: tortious and criminal liability
• 5 US law
• Appendix 1: Intellectual property, privacy and breach of confidence courts
• Appendix 2: Minimising risk
• Appendix 3: Useful websites
• Appendix 4: The Resale Rights Directive (2001/84/EC)
• Glossary of terms
• List of statutes, statutory instruments, regulations, directives, conventions and agreements
• Index of case law
• Index