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The Entanglement of Intellectual Property Rights in the Global Contemporary Art

By Sarah Arora


The concept of art provides a particularly challenging conundrum for intellectual property law, as it encompasses possibly any component. In order to offer appropriate protection, the copyright law has been compelled to recognise differences between artworks, despite the fact that the majority of artists refuse to do so. The categories granted by the Copyright Designs and Patents Act of 1988 provide protection for a restricted number of works, although it is unclear where conceptual forms of art can be put. Under the aforementioned act, according to section 4(1), graphic works, sculptures, photography, and collages are considered artistic independent of their aesthetic merit. It indicates that the judge cannot apply a value judgment while deciding whether something is ‘art’. In the case of digital arts for the contemporary art scene, there exists no legal recognition unless they are considered as a part of the sculpture category. However, for creating art from previous work, there are two possibilities for creation. One is through destruction and the other through alternation. This article will investigate the tense relationship between copyright law and various forms of art, focusing on the points of conflicts and the jurisdictional inconsistencies in protecting contemporary art. In addition, we shall also understand the essence of ‘originality’ in artworks and the recognition given to the works reproduced.

Sustaining Artworks through Intellectual Property Rights

Contemporary craftsmanship relates to the craftsmanship delivered in the 21st century. This includes economic activities, private innovations, and agreements that must be secured against unauthorized duplication by an outsider. In the current corporate environment, the quickest path to advancement and competitive advantage entails imaginative labour and development. It should be protected from duplication to ensure growth and corporate expansion. This  examination focuses on the fundamental relationship between contemporary art and preserving similar works through licensed  innovation regulation.

The primary function of intellectual property rights in this scenario is to safeguard current workmanship and monitor its accomplishment for possible enhancements. IPR is applied in the construction of units and is a significant component of the hospitality, medical care, administration, and education sectors. This enables the creator of innovative ideas to achieve future success. It enhances a person’s capacity to conduct research that enables meeting client needs and requirements. IP is associated with protecting a person’s capacity to think creatively and create something innovative and original.

Introduction to Copyright and its Implication on Artworks

It is a strenuous task to ensure that the original artists retain ownership of their work in a world where information can be shared in the blink of an eye due to the spread of technology and the emergence of several new art forms. Here, intellectual property rights are undeniably an efficient means of protecting exemplary works of art and property. In addition to ensuring that artists receive adequate monetary compensation for their works/arts/creation, this provision of the law includes a highly unusual aspect that allows artists of diverse art forms to claim ownership and have legal title over their creativity.

Copyright, one of the intellectual property (IP) categories most commonly linked with the arts, is currently the subject of controversy and scrutiny from other sectors. Industry-focused copyright holders, such as filmmakers and record firms, advocate for more control over their films and songs. Concurrently, the digital rights management frameworks are being updated, and the public is demanding that copyrighted works be less expensive and more readily available. Ironically, authors and artists are not at the center of this dispute, despite the fact that it is typically their products that these other parties are negotiating and disputing over. Indeed, the artist working in the IP environment of today has a distinct set of worries  from the agency that commercializes his or her work. The legal interests of creators and copyright holders can be vastly different, and many of the legal problems at stake (e.g. moral rights) are greatly dependent on the artist’s working jurisdiction.

Seeking Originality in Restored and Reproduced Artworks

Copyright law necessitates that an artist create something ‘original’ and unique. However, the definition of originality is not always evident. The notion of ‘originality’ under copyright law varies among legal systems and national regimes and is not necessarily tied to a work’s ‘aesthetic’ worth. By tying compensation to the creator’s efforts, the common law system essentially avoids assessing the ‘aesthetic’ value of a work when judging its originality. In the meantime, a society’s definition and appreciation of ‘aesthetics’ evolves over time.

In the field of reproductions and restorations, it has not yet been determined globally whether the artist making the reproduction is entitled to a new copyright on the reproduced work. One such landmark case is the dispute between Bridgeman Art Library and Corel Corporation for copyright infringement, wherein the plaintiff did not realize that the decision would go so strongly in its disfavor. Not only was the infringement dismissed, but the copyright itself was found to be invalid. Bridgeman Art Library, Ltd. v. Corel Corp. set a precedent establishing reproductive images of two-dimensional artworks as not copyrightable. Details of the court decision include two previous cases that involve the copyrightability of photography in general and the copyrightability of facts, respectively. Most photographs are copyrightable, while most presentations of facts are not; these two areas intersect in reproductive photography. The Supreme Court finally held that mere ‘sweat of the brow’ does not constitute a ‘creative spark’. While the plaintiff has labored to create ‘slavish copies’ of public domain works of art, it may be assumed that this required both skill and effort, but there was no spark of originality and since the point of the exercise was to reproduce the underlying works with absolute fidelity, therefore copyright is not available in these circumstances. In other analogous situations, such as the restoration of murals or structures, in which a restorer uses considerable judgment and imagination to create a new work based on but not identical to the original, the validity of an argument for originality remains dubious.

Point of Conflicts in Forms of Expression with reference to Contemporary Art

Before copyright may well be established in the majority of jurisdictions, an effort must be lodged in a tangible form of expression. Therefore, a painting in the sand on a beach and an ink drawing on a person’s body do not qualify for copyright protection, as the water will wash them away. Although the criterion that a work be repaired has been challenged and critiqued, it remains the international standard with the exception of a few countries. Copyright exceptions such as “fair dealing” and “fair use” in common law regimes play a significant role in the domain of modern art, particularly with reference to appropriation art. Appropriation art, another difficult-to-define art category, often refers to art that “borrows familiar images from advertising, the mass media, and other sources, inserts them in new situations, and thereby seeks to alter our perception of these images”.

In the realms of modern art and digital media, moral rights laws, which are frequently disputed even in the context of conventional artistic mediums, are garnering increased emphasis. Moral rights within the context of modern art can raise highly intriguing difficulties. Internationally, moral rights legislation has not been vigorously contested, hence there is a dearth of case law to teach artists of their rights. For instance, an artist whose work is best appreciated in person may have granted a museum permission to print her work in a large-scale “coffee table” book, but she may object to the reproduction of her work on the institution’s website if the image appears distorted to her. Depending on the museum’s jurisdiction and the text of the copyright release contract, the artist may be able to argue that her moral rights entitle her to ban reproduction of her artwork on the internet.

The current copyright law in India only recognises and protects works in which ideas and expressions are distinct, thus excluding works in which the two are combined. Conceptual artwork, which is a form of contemporary art, does not fit this criterion. In India, just expression and not the idea as a whole is protected, because ideas are too precious to be copyrighted and hence cannot be monopolized. The idea-expression doctrine threatens the copyrightability of this work of art. A possible solution to this obstacle could be the doctrine of merger wherein the idea and its expression are so intertwined that there is only one way to express it, then that expression is not eligible for copyright protection under Indian copyright rules.


Art is a constantly evolving field that poses unique challenges to intellectual property law. As demonstrated above, the majority of contemporary art styles are derived from pre-existing art. “When does the right of one artist begin and when does the right of another artist end?” was the question posed at the outset of the research. The answer to this question lies in the fact that since originality is the sole criterion for granting copyright protection, the copyright shall be granted to the artist whose work has a flavour of uniqueness and whose idea behind the art is different from the earlier one,  According to Supreme Court rulings, their work should have a minimum level of creativity and which is not exactly the same as earlier and which is not based solely on skill. Uniqueness in form and the required level of originality are prerequisites for Copyright law protection. Additionally, to justify the factor of uniqueness a substantial test for similarity may be undertaken to gain a bonafide picture of the situation at hand and thereby effectively embody the artwork under the ambit of Intellectual Property Rights.  It is true that achieving such standards is not an easy task, but it is necessary to create policies and frameworks and provide them to contemporary artists so that the art they create, the imagination they employ, and the amount of recognition their work requires are all protected by the IP laws enforced.

About the Author

Sarah Arora is pursuing law from the Jindal Global Law School at O.P. Jindal Global University.

Image Source: Martin Meissner/AP/picture alliance

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