The protection of artwork is a growing concern in today’s modern world, where it has become easy to imitate artwork with just the click of a button that reproduces it digitally. So, when we talk about protecting art, a few forms of Intellectual Property Rights (IPRs) are of particular importance – namely Copyright, Industrial Designs, and Trademarks. Artists, designers, sculptors, and many other creative professionals use creative expression and skill to create unique works that ought to be protected. While litigation involving unauthorized use of an artist’s work has become frequent, there are several artists who, even today, are unaware of how to protect their works. For understanding how Intellectual Property (IP) law can work alongside the artists in protecting their works, it is imperative to inspect which IPRs apply to which kinds of artwork and the kind of safeguards they have to offer.
Copyright protects the following categories of original artistic works:
- A graphic work, photograph, sculpture, or collage;
- A work of architecture, being a building or model of a building; and
- A work of artistic craftsmanship.
These categories are quite clear and cover works falling within the ordinary meaning of the words apart from ‘graphic work’ and ‘a work of artistic craftsmanship,’ which need some further elaboration.
A ‘graphic work’ is almost any visual work on a surface, such as a painting, map, etching, engraving, lithograph, woodcut, or similar. The work has to be fixed on a surface. The work will be protected irrespective of artistic quality, as will all other types of work in the first category except sculptures, which do require artistic merit to be protected by copyright.
A ‘work of artistic craftsmanship,’ on the other hand, needs to have some artistic merit, and it applies only to those items, which are made by hand or individually, not to mass-produced, identical items. For example, hand-painted tiles, stained glass windows, and wrought iron gates, as well as the type of designer furniture made by Lord Linley, would fall into this category, but not mass-produced furniture.
Copyright arises automatically when the work is created, even without registration. However, registration is preferred because it acts as a timestamp of the date of creation, and in some jurisdictions, registration is mandated before claiming damages for infringement; for example, the United States.
An artistic work may also qualify for protection as an unregistered or registered industrial design. It can be for the whole or part of a product. Unlike copyright, a registered design gives the holder an exclusive right to make the design, meaning that he or she can take action against someone who infringes his or her design even if it is not copied.
An unregistered ‘design right’ arises automatically but gives a lower level of protection than registering the design. For example, it only protects against a similar work if the maker of the later work has copied the design to produce it.
Designers/artists who create 3D models or CAD drawings often rely on designs because while the drawings may be protected by copyright, the design cannot. So, for this reason, having a design registration is necessary. Designs only cover ornamental features, and the design cannot be functional. The design may relate to the configuration or shape of the product, to the surface ornamentation, or both. However, the surface design cannot be separated from the product, meaning that if it were to stand alone, then the pattern would be copyrighted, not patented.
Ownership of IPRs in Art
The general rule is that an artist will own the copyright and design rights in any work that he or she produces. However, if someone produces an artistic work in the course of employment, any copyright or design rights in that work will automatically belong to the employer. If an artist is commissioned to produce artistic work, then unless there is an agreement to the contrary, the artist will usually own the copyright in that artistic work; although, the commissioner will own any design rights. The person commissioning the work will, however, have a limited implied license to use the work without infringing the artist’s copyright for the purposes for which it was commissioned.
If an artist creates an artistic work jointly with another person, then each person would own the copyright in particular parts of the work if such contributions are distinct from each other. If such contributions are not distinct from each other, they will jointly own the copyright in the work and will need consent from the joint author to exploit it in any manner.
Finally, an artist has certain moral rights in his or her works. The same includes, among other things, the right to be acknowledged as the artist when the work is displayed in public and the right to object to derogatory treatment of the work. Moral rights are personal to the artist and cannot be assigned or waived off; although, they need to be asserted to take effect.
Trademark Law and the Artist
As such, Trademark Law does not directly concern an artist. However, trademark law becomes relevant when an artist decides to depict a trademark in his or her artwork. A trademark is a source indicator that distinguishes the goods of one person from another. It reflects the goodwill of a company. Nevertheless, an artist that uses a trademark in his or her work may have a good defense against Trademark Infringement. For example, if the artist depicts his observations regarding a historical event. The same issue was discussed in the United States in the case of the University of Alabama Board of Trustees vs. New Life Art. New Life Art, owned by artist Daniel A. Moore, who created an artwork capturing the famous University of Alabama football scenes, down to the colors, logos, and other trademark indicia of the Alabama Crimson Tide football team. Although Moore had done this for years, sometimes with a license and sometimes without, the University decided that he needed a license to depict the University’s trademarks in all of his artwork. Moore refused, and so the University brought a trademark infringement action against him. The United States Court of Appeals for the Eleventh Circuit rejected the notion that Moore needed a license to depict history in this manner. The court held that “trademark protection should narrowly be construed when deciding whether an artistically expressive work infringes a trademark.” The court concluded that it must “carefully weigh the public interest in free expression against the public interest in avoiding consumer confusion.”
Therefore, artistically expressive use of a trademark will not violate the mark unless the use of the mark has no artistic relevance to the underlying work whatsoever, or if it has some artistic relevance unless it explicitly misleads as to the source or content of the work.
Final Words on Protecting Your Art
Artists put in a lot of skill and creativity in making their art unique. Although it is challenging to stop every imitation of one’s art, it is not entirely impossible. This includes:
- Using the © symbol on your artworks such as paintings, drawings, sculptures, etc.
- Applying for Copyright Registration (This is a good proof of the date of creation of the art).
- Applying for a design registration for ornamental aspects of a product with utility.
- Taking action where IPRs or moral rights (right of paternity, right against destruction, right of integrity) of the artist are infringed.
The necessity of art and IPRs’ law co-existing and developing together is crucial not just because it provides a statutory basis for the protection of artists’ unique work, but also because the very basis of the IP law is founded upon providing an incentive to innovate. By protecting artwork for a specific period of time, the law not only helps the creator by allowing him to gain monetary benefits, but also allows others to improve upon and reimagine the particular artwork after the expiry of the protection term. Thus, in this manner, a society that progresses culturally and creatively is built with the help of the law.