Contemporary Art and Intellectual Property

Riya Raman is an LLB(H) student at Bennett University and has done her bachelors in English Honours. Her area of interest in law is Intellectual Property law, Criminal law and Media law and writing and research, literature, novels.

“A picture is a poem without words” ~ Horace.

INTRODUCTION

HOW DOES ART POSE A CHALLENGE TO INTELLECTUAL PROPERTY?

We can see that there is n number of challenges faced with the registration of contemporary art. People are being provided with a well-built road for the future of entrepreneurship through contemporary art in its distinctive form. With an increasing number of people exploring their skills and launching small enterprises to serve others with varied art skills, these firms are typically limited in their exposure and understanding in the early stages. Their restriction drags them down a rabbit hole of ignorance and miseducation. As a result of their lack of knowledge of IP laws, they infringe on IP rights and end up in a lawsuit against well-established and large firms, which is an expensive and time-consuming task to resolve, adding to the difficulties faced by small businesses and leading them into trouble they didn't intend to be in. IP cases for infringement are fairly widespread nowadays for various reasons, such as if the trademark is identical in the same class, involves a name that is already a well-known brand name among the general public or adopts a similar tagline as any other brand. These are only a few examples, but several other flaws allow large corporations to exploit tiny artists, and appropriate awareness of these concerns is critical to avoid such problems.

The true goal of IP legislation is to prevent the protected work from being reinvented and recreated. However, the foundation of contemporary art lets us know that it entails reworking, giving an existing piece of art or invention a new perspective. People frequently associate reimagination with creativity in modern art. In the current hesitant creative form that requires us to consider and restrict our creations with law, it isn't easy to define the concept of IP. People are frequently terrified of receiving a black slash from a wealthy and well-known person on brand claiming ownership of an idea or a work. This raises various questions in the mind of artists about the society that surrounds contemporary arts and professions.

How far is one’s information or artwork safeguarded with such a considerable amount of data available and the availability of online images? Online artworks are frequently cited as sources of inspiration, raising the issue of the rights of the recreated artist and the original artist. Technology should be handled with caution, and artists reproducing any art form in the form of contemporary art must realise that the original artists' rights are not infringed upon.

Crimes related to IP have been widespread in the modern period, as the world has grown increasingly computerised. Theft of a creative concept without the artists' approval is a common and straightforward occurrence that results in enormous losses for the original owner. Because these are intangible assets, they are effortless to duplicate. Strict IP rules are critical in situations when the threat is so significant that exploiting any artist is so simple, and stealing ideas from anyone in the globe with just a few clicks has become a thing.

INTELLECTUAL PROPERTY POSING THREAT TO ART

Intellectual property legislation is also seen as a threat to arts and artists by certain people. This is especially true in the case of modern art. Contemporary art is distinct in that it is built on reinvention and re-characterization. This, understandably, entails appropriating prior works to provide a fresh take on them.

This is where the squabble begins. When does one artist's right to create an end and another’s right to develop begin? While the rights of the artist who intends to borrow be restricted, the main criticism of this solution may be that it is unnecessarily simplistic. Almost all art draws on a pre-existing body of information in some way. As a result, this isn’t a realistic option. The rights of the artist whose work is being borrowed must also be respected. This would defeat the whole point of intellectual property legislation.

“The degree of borrowing would be considered as part of the substantiality test. If an author borrows from another artist and creates a substantially similar work to the previous one, his rights should be limited. The difficulty with this strategy is that modern art, which is obsessed with finding new ways to interpret old works, will necessitate a lot of borrowing.”[i]

Examining the degree of uniqueness of the new work generated is one recommended viable answer to this challenge. If a work borrows heavily from another to recreate and re-characterize a concept, he should be permitted to do so. Because defining a precise set of standards in the sphere of art would be unnecessary, each case must be decided on its own merits.

The intellectual property law challenges given by contemporary art must be addressed, and an appropriate solution must be found to ensure that artists' rights do not infringe on one another

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NEED FOR THE REFORM IN IP REGIME

With the obstacles mentioned earlier, specific gaps must be filled to familiarise modern artists with IP culture and encourage the use of the numerous protections that IP rights provide. There must be a correct allocation of rights and a passage of similar artwork being replicated from a different perspective to include contemporary art in the definition of art forms under IP rules. The importance of educating individuals about the benefits of IP and instilling respect for IP material is crucial. As a result, policies and strategies should be developed that take a more holistic approach, not just reassuring contemporary artists that intellectual property is vital for the protection of their works but also providing solutions to various challenges and problems.

PROTECTION OF ARTWORK

With their imagination, creative artists can make a significant contribution to the world. Creative expression is used by artists, musicians, lyricists, sculptors, fashion designers, and graphic designers to create distinctive works that should be preserved.

The goal of encouraging artists to copyright their work is to promote creative expression in society while also safeguarding artists’ financial and legal interests. In a country’s development process, copyright is a critical component. The level of protection granted to the artist directly impacts the enrichment of the national cultural legacy. The higher the degree, the greater the incentive for creators to create; the more intellectual works a country produces, the greater it’s renowned. This has an impact on all aspects of social, economic, and cultural development.

“Indian copyright law is on par with international copyright norms outlined in TRIPS. The Berne Convention for the Protection of Literary and Artistic Works, 1886, and the Universal Copyrights Convention, to which India is a party, are reflected in the Indian Copyright Act, 1957, as amended in 1999.”[ii]

The copyright law, in addition to protecting the copyright owner, addresses the issue of public interest. It is a collection of exclusive rights known as a negative right. The right owner can restrict others from duplicating his work or performing any other acts that are only permissible under copyright law.

Copyright does not protect an idea, regardless of its originality. In a case where the plaintiff hired an artist to create a drawing of the representation under his supervision, it was determined that the plaintiff had no right to restrict the artist from publishing the picture later since copyright did not exist in ideas.

Original photographs, regardless of artistic merit, are also protected as artistic works. When a painter creates a painting using an image as a reference, the photographer's copyright may be infringed upon. Somarwell L.J. stated in “Bauman v. Fussel”[iii] that a painter who was instructed to create a painting of the procession in his manner would not infringe on the plaintiff's copyright if he used the plaintiff’s photos to precisely depict the relative positions of individuals taking part.

DIGITAL ARTWORK AND INTELLECTUAL PROPERTY

New media art, often known as digital and computer-generated art, is an artistic work, performance, or activity that incorporates digital technology into the creation or presenting process. A digital artist creates digital art, a phrase that refers to an artist who creates art using digital and computer technologies, including drawing, painting, sculpture, sound art, digital installation art, and virtual reality.

With the introduction of the digital world, accessing, using, duplicating, or modifying the original work has never been easier. The digital environment has offered a platform for people to widely distribute unique works at a low cost, posing significant dangers to the creator's interests.

The threats to copyrighted material posed by the digital environment are vastly different from those encountered in the physical world. To combat these dangers, a plethora of strategies have been devised to make it impossible to duplicate, distribute, or access digital works without permission. Digital Rights Management is the umbrella term for these strategies.

In 2012, a few DRM measures were added to the Indian Copyright law by way of an amendment. The Indian Copyright Act, 1957 was amended to include sections 65A and 65B. These DRM restrictions in Indian law are not as comprehensive as those in US law. After being accused of lax protection and enforcement measures, it is time for India to adhere to these digital rights management standards and prevent copyright infringement in the digital world. It is important to remember, however, that there must always be a balance between copyright holders and public consumers.

CONCLUSION

People face problems that require IP solutions at all hours of the day and night. Artists have problems as a result of the IP’s lack of inclusion of contemporary art, which is a problem that must be remedied through a better understanding and attitude to the art forms, as well as assessing cases on their merits rather than following a rigid guideline or formula. “All of this is not an easy task, but it does necessitate the creation and provision of policies and frameworks to existing contemporary artists so that the art they create, the imagination they employ, and the amount of recognition their work requires are all protected through the enforcement of IP laws.”[iv]

REFERENCES

[i] Intellectual Property Law and Contemporary Art | Intepat. https://www.intepat.com/blog/intellectual-property/intellectual-property-law-contemporary-art/

[ii] INDIAN COPYRIGHT STATISTICS (October 2021) | IP Bulletin. https://ipbulletin.in/indian-copyright-statistics/

[iii] (1978) RPC 485 at pg: 487

[iv] What is digital shelf analytics? | Econsultancy. https://econsultancy.com/what-is-digital-shelf-analytics/

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