by Dipti Janardhana
In 1816, Thomas Jefferson wrote, with reference to law and human progress, “We might as well require a man to wear still the coat which fitted him when a boy.” We can only appreciate how valid that quote is today, in the year 2016, with reference to contemporary art and the law.
What is contemporary art?
It could be Andy Goldsworthy’s ‘land art’, where he uses natural and perishable materials to create ever-changing temporary sculptures that build on the themes of time, destruction, decay and rebirth; it could be ‘victimless leather’, a semi-living jacket, made from living tissue taken from mice, combined with human bone cells, to initiate discussions on the moral implications of wearing dead animal skin, and humans’ responsibility to other living beings; it could even be Marina Abramović sitting in a chair for seven hours a day, six days a week, turning herself into the medium through which she portrays her art.
Contemporary art in its literal sense is art made by artists living today. However, artists living today tend to create work in response to a world that is culturally diverse, technologically advancing and multifaceted. They are inclined towards rejecting the traditional characterization of art and are moving towards redefining what constitutes art.
Contemporary art arrived soon after ‘modern art’, in the 1970s, and has gradually gained momentum over the years. Exploring ideas of abstract expressionism, artists have been trying to explain that a work of art is rarely ever the final product, but is in fact itself the process and purpose of making the work.
Unfortunately not many societies are able to accept the ideas of contemporary artists, which brings us to the question — how are the interests and rights of a contemporary artist protected?
What are the laws protecting art work?
Copyright is the armour worn by artists to protect themselves from externalities like having their work copied without credits, thereby robbing them of the moral and economic rights over their work.
The essentials of copyright are that the work be original and fixed in a medium. Originality doesn’t require that the work be meritorious; merely that it be a unique expression of an idea. Fixation, on the other hand is a more rigid rule. In order to be protected it is required that a work of art be available in a tangible and permanent form, excluding any transitory work of art.
Given the above explanation of contemporary art, one can see why current copyright laws can be insufficient in the protection they afford contemporary artists.
Looking first into the concept of originality, we need to understand the evolving nature of art. Art can’t be constricted to the one piece of work that is the outcome of the hours of labour invested into it by the artist. Most contemporary artists believe that art is more about what it expresses and the dialogue it strikes between people. When such is the case, more often than not, appropriation of works from other artists becomes a sort of necessity for an artist to be able to express themselves. Artists like Barbara Kruger and Marcel Duchamp explain that by removing a work of art from its original context and placing it in a more current context, they renegotiate the way in which people understand the work. Hence originality as a criterion for copyright only curbs the growth of these contemporary forms of art.
Fixation is an idea exclusive to traditional forms of art and hence inapplicable to contemporary forms of art. The idea of fixation is discussed in detail in the next segment.
The Idea of Fixation
Fixation as a concept requires that a work of art be perceived, reproduced or otherwise communicated to an audience for a period more than a mere transitory duration. This is to say that the work of art be available on a physical medium for a reasonably long duration.
The purpose of fixation is so that there may be a clear distinction between an idea and the expression of an idea. An idea or a theme has to be expressed or showcased in a unique way in order for it to be eligible for copyright protection. An idea is fair game, available to all artists to express in any form they wish. To this extent, fixation can be accepted as a necessary evil, in order to prevent excessive copyright protection.
The problem arises when there is an exclusion of transitory works or temporary works. The entire basis of some contemporary art is to work on temporary and perishable mediums, to express emotions and ideologies.
For example, Richard Long walked back and forth on a field to form a line to portray impermanence, motion and relativity of everything in this world. Many considered this a work of art. Unfortunately, due to the fixation clause in copyright law that enforces exclusion of transitory works, Richard Long’s A Line Made by Walking isn’t copyrightable.
A Need for Something Better
It is unfair to apply archaic laws to the contemporary world. There is a need for copyright laws to be amended to make them more inclusive of contemporary art. Two suggestions can be made in furtherance of this.
Firstly, the exclusion of transitory works could be removed from the concept of fixation. This would still uphold the separation of idea and expression, while allowing for the inclusion of contemporary art.
Secondly, there could be amendments made to the moral rights given to an artist under the act. Moral rights are those rights that an artist has over their work even after losing ownership over the same, to prevent misuse and protect the integrity of the work. Moral rights can be expanded to include the interests of contemporary artists.
With the constant changes in art forms around the world, the current laws are in desperate need of amendment in the interest of being made more inclusive.