In view of the market for original art works, perhaps some artists may find themselves saying copyright law is neither a help nor a hindrance…
The Artist’s Resale Right
It is this market for original works that is affected by the Artist’s Resale Right – the right for a visual artist or their heirs to receive a royalty when a work is resold. The Resale Right Directive says the right ‘forms an integral part of copyright’, which seems to sound better in French: ‘Le droit de suite fait partie intégrante du droit d’auteur.’ It has, after all, nothing to do with copying, apart from the fact that it only applies to works that are in copyright.
The Resale Right is, as has recently been demonstrated on this blog, a relatively contentious piece of EU law from a UK perspective. Before the introduction of the Directive, the right had existed in most European countries but not all – most notably the UK, which made Britain an internal-market-distortingly attractive place to sell art. As a transitional concession, the royalty is not currently payable in the UK on sales of works by deceased artists but it will be from next year. Since implementation of the Directive in the UK, artists have had a choice of collecting societies, DACS and ACS (and ARA) – ACS being established to mitigate the possible anti-competitive effects of a collecting society monopoly.
Meanwhile on the other side of the Pond, sculptor Jeff Koons has been generating considerable jollity by sending a cease and desist letter to a gallery/shop that sells balloon dog bookends, saying that they are violating his IP rights in his Balloon Dog Sculpture. Park Life are standing their ground, saying, ‘As virtually any clown can attest, no one owns the idea of making a balloon dog and the shape created by twisting a balloon into a dog-like form is part of the public domain . . . any similarities between the Balloon Dog Bookend compared with the Balloon Dog Structure are driven by the wholly unprotectable idea of depicting the shape of a balloon dog in a solid form.’ Perhaps the qualifying word ‘virtually’ indicates the presence of a few dissenting clowns.
Does Koons’s originality consist only of making that shape solid or could he own the copyright in the shape itself? US copyright protection subsists in original works of authorship including sculptural works. If clowns’ balloon dogs are not sculptures, then could the shape of Jeff Koons’s sculptures be original from a copyright perspective?
Park Life describes itself as ‘a retail bookstore and art gallery featuring art and design products’. This suggests that the balloon dog bookends were being sold as art objects.
Physical-object art doesn’t just attract a Resale Right. Because it is physical and often unique, it may have a strong relationship with its physical context. Artists like Koons belong to the objet trouvé tradition. Their creativity is often about taking a commonplace object and putting it in a different context, designating it as ‘art’. Does the act of re-contextualizing an object count towards copyright protection? Is what you have to say about your artwork or the fact it is in a gallery relevant, meaning that selling the shape as an art object has a bearing on whether there is an infringement? If not (as seems likely), much modern art starting with Duchamp seems to fail to be protected by copyright.
But even if copyright and economics don’t count context as part of a work of art, that doesn’t mean it isn’t (moral rights do care about context).
Walter Benjamin argued in The Work of Art in the Age of Mechanical Reproduction that mechanical reproduction has changed the social function of art from ritual to political. Reproduction, he said, challenges the here-and-nowness, the ‘aura’, the authority of the original work. Perhaps the field where mechanical reproduction has made least difference is visual art (people still value the genuine original article)? However, the reason for valuing these original works may be less about their ‘auras’ as their investment value (which mechanical reproduction increases because the works’ genuineness can’t be mechanically reproduced).
Building on Benjamin, it could be argued that before mechanical reproduction, art and its context were often inextricable, and not just visual art. Bach wrote for Sunday-morning mass, Michelangelo painted the ceiling of the Sistine Chapel, plays were written to amuse kings, poems for lovers etc etc. Mechanical reproduction, on the other hand, means an artist/author has less control over where or when his work is consumed – the work becomes a disembodied commodity that can be traded and copied. However, more recently, user-generated content is increasingly being created within the context of online communities. The significance of a photograph on Facebook may be less about its artistic qualities as the point someone is trying to make with it. Where economics does not make it necessary, it may not be imperative to sustain the myth that works of art exist in vacuum-packed isolation.