A great way to protect such exceptional works of art and property is undoubtedly
through intellectual property rights. It is a difficult job that the original
artists have rights over their work given the great variety of emerging creative
forms and the rapidly expanding body of work in a technologically advanced
society where information can be disseminated in the blink of an eye.
research paper mainly revolves around the concept of clash between contemporary
art and intellectual Property Rights. This paper tries to highlight about the
copyright laws related to artistic works and its view in the case of
contemporary art. This paper further tries to shed light on challenges faced by
Intellectual property laws due to contemporary artworks.
In order to protect and encourage creation, IPRs were created. For artists, this
area of law is particularly crucial. It guarantees that artists get the credit
they deserve. Contemporary art is distinctive in that it heavily relies on
redefining and reinventing itself. It seems sense that in order to give a new
perspective of an old work, this needs borrowing from earlier works.
Surprisingly, some people believe that the existence of IP laws poses a threat
to artists and the arts. Particularly in the case of contemporary art.1
Around the year 1450, Johannes Gutenberg invented the printing press and
moveable type, which contributed to the creation of the first copyright system
ever. The first methodical effort to safeguard inventions in the form of a
patent was made by a Venetian Law in 1474. By the end of the 19th century, new
inventive manufacturing techniques had contributed to widespread
industrialization. The international IP system also started to take shape at
this period. The benefits and recognition that come with IP ownership inspire
more innovation and drives economic progress.
All forms of IP are intended to be better protected and enforced under the TRIPS
Agreement. It discusses the provisions in international agreements on IP and the
applicability of general GATT principles (Part I). The Agreement also
establishes requirements for the IPRs' use, enforcement, compliance,
acquisition, and maintenance.2
This research paper answers the following questions:
- Whether Contemporary arts are protected under The Copyright Act 1957?
- Whether Contemporary arts poses challenges to present Intellectual
- How the originality of work can be determined?
Contemporary art poses difficulties for intellectual property laws, particularly
The paper follows doctrinal research, which is theoretical in character and
entails a detailed analysis of legal principles as well as an assessment of
legal theory and how it is created and applied. Interpretation of case law,
legislation, and other legal docs is the focus of this methodology.
Harvard Bluebook � 20th Edition
Legal Protection of Artistic Works
- Intellectual Property Rights
Any original work of the human mind, including those in the arts, sciences,
literature, technology, or other fields, is considered to be the subject of IP.
The term IPR refers to the legal privileges granted to the inventor or creator
to safeguard their work for a predetermined amount of time. These legal rights
allow the inventor or creator, or his assignee, the sole right to fully exploit
their idea or creativity for a specific amount of time. It is widely
acknowledged that IP is essential to the modern economy. Additionally, it has
been unequivocally proven that the intellectual labor connected to the
innovation deserves to be given the respect it deserves in order for it to serve
the greater good.
- Contemporary Art
People or artists frequently draw inspiration from various things around them or
even from various art forms, and they keep that inspiration in mind as they work
on their art form with a hint of their imagination and creativity in it. This is
what the saying Art is where the inspiration is refers to. Contemporary art is
distinctive in that it heavily relies on redefining and reinventing itself. It
seems sense that in order to give a new perspective of an old work, this needs
borrowing from earlier works.
- History of Art Copyrights
The economic worth of works of art was first officially recognized by the
Engraving Act of 1734. Later on, "moral rights," such as the right to
attribution, were recognized in the Berne Convention of 1886. But as the field
of art has grown, it has gotten more and harder for the law to define what
counts as an artistic work and what doesn't.
- Protection under The Copyright Act 1957
The term "copyright" refers to a collection of exclusive rights that Sec 14 of
the Act grants to the owner of copyright. All original literary, artistic,
musical, or dramatic works as well as cinematic and sound recording works are
protected by copyright laws. Original simply indicates that no other source has
been used to duplicate the work. In India, copyrights are protected by the
Copyright Act, 1957. The following two types of copyright protection are granted
by it: economic rights and moral rights.
Original literary, dramatic, musical, and creative works, as
well as cinematographed films and sound recordings, are protected by copyright.
Copyright holders for the aforementioned works are granted economic rights u/s
14 of the Act. MORAL RIGHTS: The Act's Sec 57 outlines the two fundamental
"moral rights of an artist." These include the rights to paternity and to
Test of Sustainability
The process of determining the authenticity of a piece of work or an artistic
medium developed by an artist is called the sustainability test. The component
of reimagination and recreation is valued in this test. Examining allegations of
copyright infringement in relation to modern artworks frequently involves
applying the standard of significant resemblance. The considerable similarity
threshold can be further broken down into a number of criteria that courts have
developed throughout time. Inverse ratio rule test, pattern test,
abstraction-filtration-comparison test, and total concept and feel test are
among the tests.
Challenges Faced By IP Laws Due to Contemporary Arts
Many issues emerge when contemporary arts are registered under IP regulations,
however only a handful of them are covered below:
Point Of Conflict b/w Contemporary Art and Copyright
- Lack Of Awareness: These enterprises frequently start off with little exposure and experience due to the growing number of people developing their talents and starting small businesses. They end up violating the IP rights, which leads to a costly and drawn-out legal battle with established, large companies.
- Conflict Between The Goals Of Contemporary Art And IP Law: The actual goal of IP law is to stop further appropriation and recreation of the protected work. People frequently associate reimagination with creativity in contemporary art. However, the fundamentals of contemporary art let us understand that it entails reshaping, giving an already existing work of art a new viewpoint.
- Advanced Technology: IP crimes have increased in frequency as the world has grown more digital. In situations like this, the necessity for strict IP regulations is critical. Contemporary artists that recreate any type of art must realize that the original artists' rights are not violated.
As is common knowledge, copyright is regarded as a valuable asset for artists
and serves a critical role in the protection of creative works. India has laws
to safeguard IP, and copyright is one type of IP. Artistic work is one of the
numerous types of works that the Copyright Act protects. Sec n 2(c) of the
aforementioned Act provides a definition of artistic work.
Because it falls
under the purview of the Copyright Act of 1957, contemporary art is also
considered to be an artistic production and is therefore subject to the same
regulations as other creative works. However, the distinctive characteristics of
contemporary art provide problems for the copyright laws. Since the majority of
current art forms are founded on
earlier works of art, the question of when an artist's rights end arises as the
The answer to this query is that all artistic endeavors draw inspiration from
some body of previously developed knowledge, concepts, or works of art that may
be related to other artists. Therefore, restricting a contemporary artist's
rights is not a solution to this issue, and it is also not possible to eliminate
the rights of the original artist because doing so would undermine the
fundamental purpose of IP laws.
Possible Solution to this Problem
Copyright is stated to exist in original literary, dramatic, musical, and
aesthetic works under Sec 13 of the Copyright Act of 1957, however this Act does
not define originality as such. We must comprehend this with the aid of judicial
interpretations. The courts determine the level of originality required to get
copyright protection, i.e., whether or not a particular work would be deemed
original�this determination can differ from court to court.
Sweat Of The Brow Theory
IP doctrine known as the "sweat of the brow" is primarily connected to copyright
law. In the UK, this notion was established in the Walter v. Lane decision in
1900. In this instance, the House of Lords ruled that copyright protection
applies to any verbatim reproductions. MODICUM OF CREATIVITY
The oldest and most advanced copyright laws in the world are known to be those
in the USA. For many years, the US courts have been recognized to defend
authors' original works of art. The Sweat of the Brow philosophy was long used
in India, but the country's standards for originality were a little higher than
those in England. In the case of Macmillan and Co. vs. K & J Cooper,13 the Privy
Council upheld the Sweat of the Brow theory. The Sweat of Brow argument was also
acknowledged by the Hon'ble Delhi HC in the matter of Burlington Home Shopping
Pvt. Ltd. v. Rajnish Chibber & Anr.
Eastern Book Co. vs. D.B. Modak (2008)15
The other parties that submit the cases reported by the SCC together with their
editing, such as case comments, cross references, headnotes, and para-numbering,
which makes the court's original judgment easily reading and intelligible,
aggravate the plaintiff. This English doctrine was rejected by the Hon'ble SC,
who instead embraced the notion of Modicum of Creativity.
According to a court decision in India, the editing a book's editor performs
qualifies as an original literary work and is therefore protected by Sec 13 of
the Copyright Act. The court further ruled that no one can assert copyright over
the original judgments because they are in the public domain.
Blanch v. Koons (2006)16
The court upheld the district court's grant of summary judgment and determined
that the defendant's use of the plaintiff's photo constituted fair use. The
collage was judged transformative by the court because the defendant utilized
the photograph as raw material to advance specific creative or communicative
goals. It would be unfair to call the painting's creation and display commercial
Conflict with Reference to Conceptual Art
The current copyright law in India only acknowledges and defends those works
where ideas and expressions can be distinguished from one another; it does not
take into account works when the two are combined. Contemporary art, which
includes conceptual art, does not fully fit inside the criteria. Because
concepts are too precious to be protected by copyright and therefore cannot be
monopolized, only expression and the idea as a singular entity are entitled to
protection in India. The idea-expression doctrine casts doubt on this art's
ability to be protected by copyrights.
The doctrine of merging is applicable here. According to this theory, if an idea
and its expression are so intertwined that there is only one way to represent
it, then the Indian Copyright rules do not provide copyright protection for that
RG Anand v. Deluxe Films (1978) 17
In a letter to the plaintiff in 1954, Mohan Sehgal expressed his ambition to
adapt the play Hum Hindustani into a motion picture. Although the defendant was
innocent of any wrongdoing, the plaintiff later learned that the defendant had made a film
called New Delhi. So, he sued the defendant for a permanent injunction as well
The SC ruled that the play's script cannot be said to have been violated by the
movie. It supplied this explanation because, despite the fact that both stories'
ideas were similar, they were expressed in very different ways. Consequently, it
cannot be deemed to constitute a copyright violation.
Mansoob Haider v. Yashraj Films (2014) 18
The Bombay HC reaffirmed that ideas are not protected by copyright in this case.
After eliminating differences, concepts that are similar but not identical are
what remain, and similar ideas do not constitute a violation of IPR.
View of Judiciary:
Amar Nath Sehgal v. Union of India (2005)19
In this incident, careless treatment of a valuable sculpture that was referred to as an Indian national treasure resulted in damage and, in fact, mutilation of the piece. After a protracted legal battle that lasted more than 20 years, the Court determined that the destruction of a piece of art violates an artist's moral right to integrity since the integrity and existence of the artist's whole body of work forms the fundamental basis of that person's reputation.
Raj Rewal v. Union of India (2019)20
The court in this case rejected the argument that an author's moral rights supersede the owner's right to demolish or alter a structure. In dismissing the artist's request for an injunction, the court stated that stopping the building's destruction would constitute a constraint on the property owner's freedom to deal with his own land and property.
The Court determined that an author's right to prevent "distortion, mutilation or modification" of their work under Sec 57 of The Copyright Act 1957 did not extend to preventing the complete destruction of a work because something that cannot be seen, heard, felt, or touched cannot be flawed and cannot harm the author's honor or reputation.
Morrissey v. Procter & Gamble Co (1967)21
The main issue in this case was whether the rules of a competition or contest are protected by copyright. The judge ruled that the rules and the contest's concept are one and the same. The rules are not covered by copyright because doing so would be equivalent to copyrighting the contest's concept.
Joshua Et-Hokin v. Skyy Spirits (2000)22
A concern was raised regarding some images of the recognizable blue Skyy Spirits bottle. The Court determined that since there are just a few possible ways to shoot a bottle, the images cannot request copyright protection.
Contemporary art is distinctive in that it heavily relies on redefining and
Naturally, in order to give a new interpretation of the same work, this
necessitates borrowing from earlier works. This is where the tension originates.
What defines the boundary between one artist's right and another's right? Almost
all forms of art somehow incorporate knowledge that already exists. This is not
a workable solution as a result. The rights of the artist whose work is being
requested for borrowing cannot also be disregarded. The entire goal of IP law
would be defeated in this situation.
The degree of borrowing would have to be looked at in order to determine
sustainability. When an author who has taken inspiration from another artist
creates a piece that is remarkably similar to the work that came before it, his
rights should be curtailed. The issue with this solution is that it will
necessitate significant borrowing, which is contrary to contemporary art's
enthusiasm for the idea of offering fresh interpretations of preexisting works.
Given the issues raised above, several gaps must be filled in order to introduce
the IP culture to modern artists and encourage the use of the many forms of
protection that IP rights offer. To include contemporary art in the definition
of the art forms under IP rules, there must be a proper distribution of rights
and a passage of the same artwork being copied from a different angle. A crucial
component is educating people about the advantages of IP and cultivating a sense
of respect for the IP-related materials.
We are aware that because IP is
transnational in nature, thefts of it can also occur abroad, which frequently
creates difficulties due to language, geography, and other factors when trying
to resolve the problem. Therefore, policies and strategies that take a more
holistic approach need to be implemented in order to address a variety of issues
and obstacles while also providing contemporary artists with the assurance that
IP laws are crucial for the preservation of their works.
Research Hypothesis Tested
The hypothesis contemporary art poses difficulties for intellectual property
particularly copyright laws is tested Positive through this research as it deals
with originality of the work and it is difficult to determine the originality so
it creates difficulty for copyright laws.
The lack of inclusion of contemporary art in IP laws causes problems for
artists, which is a problem that must be solved with a thorough understanding of
the various art forms and a decision-making process that prioritizes the
interests of the parties involved rather than following strict rules or
formulas. To accomplish all of these things, which are not simple, policies and
frameworks must be developed and made available to contemporary artists so that
their works of art, their use of imagination, and the degree of recognition that
their work deserves are all protected by the IP laws that are in place.
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- Macmillan and Co. vs. K & J Cooper, (1924) 93 LJ PC 113
- Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr, 1995 PTC (15) 278
- Eastern Book Co. vs. D.B. Modak, (2008) 1 SCC 1
- Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)
- RG Anand v. Deluxe Films, AIR 1978 SC 1613
- Mansoob Haider v. Yashraj Films, 2014 (59) PTC 292 (Bom)
- Amar Nath Sehgal v. Union of India,117 (2005) DLT 717
- Raj Rewal v. Union of India, [CS(COMM) 3/2018, with IA Nos. 90 and 92 of 2018]
- Morrissey v. Procter & Gamble Co, 1967 U.S. App. LEXIS 5802
- Joshua Et-Hokin v. Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000
Award Winning Article Is Written By: Ms.Arunadhita
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