Ever thought how just a few sputters of paint, inaccurate shapes and forms on a
blank canvass can be protected?
Most people might not be able to articulate abstract art, but it cannot be
denied that among the most famous and expensively sold paintings across the
world, abstract art has a significant, almost invaluable place.
There is a growing confusion over the protection of abstract art, which forms an
important part of modern art, today; and, if the said protection is granted,
what is the basis of the same? This confusion is rooted in the mixed and
structureless interpretation of this form of art.
According to section 13 (1)(a) of Copyright Act of 1957 copyright subsists in
original literary, dramatic, musical and artistic works.
And, section 2 (e) defines artistic works
- a painting a sculpture, a drawing (including a diagram, map, chart or plan), an
engraving or a photograph, whether or not any such work possesses artistic
- an work of architecture; and
- any other work of artistic craftsmanship.
Thus, we do know that copyright subsists in artistic works (whether or not they
posses artistic quality), which covers abstract art, which effectively comes
under sub-clause (iii) of section 2 (e)
So how does an artist protect the abstract creation of his mind where there
is no structured form or shape?
Let's start by understanding what abstract art actually is.
According to Encyclopaedia Britannica, abstract art, also called non-objective
art and non-representative art in which the portrayal of things from the visible
world plays no part. All art consist largely of elements that can be called
abstract-elements of form, colour, line, tone and texture. Prior to the 20th
Century, these abstract elements were employed by artists to describe,
illustrate or reproduce the world of nature and of human civilisation-and
exposition dominated over expressive function.
Now that we know what abstract art is, let's tackle copyright
Copyright protection is a form of intellectual property protection, that is,
protection given to a creation of mind. Copyright law establishes a framework to
protect artistic creation by providing a system of economic incentive. The
economic incentive referred to, here, is one of the many exclusive rights that
are given to the author of the copyrighted work.
For copyright to subsist, the two main pillars are:
- the art work should be in a tangible form, and
- the art work should be original
Basically, just a thought, however original cannot be protected; that thought
needs to see the light of the day in a tangible form to be protected. Mere ideas
are not protected.
It is a well accepted principle of copyright law that there is no copyright in
the facts per se, as facts are not created, nor have they originated with the
author any work which embodies these facts. The issue of copyright is closely
connected to that of commercial viability, and commercial consequence and
So, if an art piece, however abstract in nature it might be, can be sold for a
consideration, copyright will absolutely subsist in it; notwithstanding the fact
that no viable form or structure can be construed from it.
But still, the problem of originality in abstract art is debatable and
unresolved, at best. It has been vastly debated that copyright protection is
discriminatory as it draws lines between traditional notion of originality and
It's important to understand that originality does not mean novelty; it simply
means that the work is created by the author and not copied.
The expression is what is protected. So, if the brush strokes, the colour, the
perspective is close to another already published artistic work, possibly under
the guise of inspiration, it's appropriation and calls from an infringement.
But how close is too close?
The line between idea and expression is often
blurred in abstract art and open to interpretation. The copyright protection
finds justification in fair play.
refers to a work's animating concept, such as a story of two
star-crossed lovers, while expression
refers to the ultimate, literal
expression, such as the play that tells the story of the two lovers'. Courts
will look at a creation and separate the idea, the unprotected part of a work,
from its expression, the protected part of the work.
This separation represents an important policy decision of what parts of a work
authors should be allowed to monopolise and what part belongs in the public
domain, so others are free to build on them.
To conclude, this confusion over whether abstract art - an artistic expression
without any structure, form or figure - should be protected or not is clearly
covered in the Copyright Act as aforementioned. While, the debate over how
copyright persists in an art piece when it cannot be comprehended, or variedly
interpreted by different people, is muted by the expression of the idea. The
expression need not be novel, but original. Not copied or imitated under the
guise of inspiration.
So, abstract artists, you are safe!�just so long as your expression is not
- Copyright Problems in Post-Modern Art, Lori Pertuzzelli; DePaul Journal
of Art, Technology and Intellectual Property; Volume 5, Issue 1 Winter
- Eastern Book Company v. D. B. Modak (2008) 1 S. C. C. 1.
- Supra note