Copyright and lessons from the past

Posted on: June 10, 2019 by

Dr Elena Cooper is an IAL member and the author of Art and Modern Copyright: The Contested Image (CUP, 2018). She will be speaking at a forthcoming IAL Study Forum on 29th June 2019.

In the meantime, she writes below on the intriguing topic of the development of copyright law, and how it reflects changes in attitudes towards art and artists both in centuries past and in modern times.

Artists often encounter trouble when confronted with copyright issues, especially in situations where they may have assigned their copyright in a work to another party. Thankfully for these artists, UK copyright law contains a special defence for the making of subsequent works by the same artist: section 64 of the Copyright Designs and Patents Act 1988 provides that an artist who is not the copyright owner, does not infringe copyright in a work by making a subsequent work, provided the subsequent work does not repeat or imitate the main design of the earlier work. Behind this peculiarity of current copyright law lies a surprising perspective on copyright from past times.

The first provision along the lines of section 64 was contained in the Copyright Act 1911 and concerned the use of artists’ sketches and studies. This stemmed from long-debated proposals from the nineteenth century, which safeguarded artists’ dealings in their sketches and studies alongside other provisions (which fell out of favour by 1911) restricting painters from repeating their own works. Collectors in the nineteenth century sought to use copyright law as a means of protecting the uniqueness and therefore the financial value of paintings by restricting painters from producing multiple versions (or repetitions) of art-works that had been sold. On this view, copyright was conceived as a fetter on artistic freedom. Some (from the collector side, as reflected in a number of Bills presented to Parliament) proposed automatic copyright ownership by the purchaser of the physical art object, accompanied by implied warranties from the artist that the work was ‘new’ and ‘original’, which warranties would be repeated and continue throughout the copyright term. Others argued that where the copyright and physical property of a painting were owned by separate people, the copyright owner could not exploit copyright in any way without the consent of the owner of the physical object. Alternative proposals favoured by artists allowed painters to retain copyright on sale of their work, but included a statutory restriction in favour of the collector preventing painters from repeating their work.

These are, of course, historic views of copyright which seem remote from the way we think about copyright today. Indeed, in more recent times questions about the right of artists to produce multiples of their works – such as the ‘artist’s copy convention’ invoked in Danowski v Henry Moore Foundation concerning the right of the sculptor Henry Moore to produce additional copies of limited edition sculptures from the original moulds (explored in E. Peden, ‘Implied Terms and the Usage of Artists’ Copyright’, Art Antiquity and Law I (1996) 298-302) – tend to arise in contractual disputes, rather than copyright cases. Yet, as explored in a previous IAL blog about Portrait of Edmond de Belamy, a piece of computer-generated art created by the Obvious Collective, the experience from past times can sometimes be of surprising relevance to re-thinking the challenges which new technologies raise for copyright today.

What other perspectives might copyright debates from past times offer? In a recent talk I gave as part of the Oxford Intellectual Property Research Centre Invited Speaker Series, I showed how copyright history can help us cast new light on works from the past, taking William Holman Hunt’s The Light of the World as an example (the talk was at Keble College Chapel, before the original painting by Hunt). I was interested in connecting the painting to themes from copyright history. The picture became popular in the Victorian era amongst rich and poor, both through the distribution of prints – engravings and unauthorised ‘pirate’ photographs of engravings (which infringed engraving copyright) – as well as the exhibition tour throughout the Empire of a subsequent far larger later version of the picture which now hangs in St Paul’s Cathedral. Hunt announced his intention to produce the larger version in the 1890s at a high-point in copyright debates over the legality of artists’ repetitions. His plans sat uneasily with claims made by artists that restrictions on repetition should apply only to versions of a work which caused confusion as to which was the original. Artists often claimed permissible repetitions to be those that were small in size, sometimes referring to them as ‘sketches’. Hunt’s announcement of his intention to produce a far larger picture than the original therefore required special justification, both as regards its legality and legitimacy.

Copyright history, then, far from being of interest only to lawyers and legal historians, can help us to understand the interface between law and culture, including how artists articulate conceptions of the artistic process.

Photograph of Dr Cooper giving talk in Keble College Chapel: © Susanna Brunetti

IAL’s forthcoming Study Forum will be held on the 29th of June 2019 at the Centre for Commercial Law Studies (CCLS) at Queen Mary University of London, at 67-69 Lincoln’s Inn Fields, WC2A 3JB. The event will run from 9:45am to 5pm and will host a variety of speakers. To learn more about the programme click here or to book your tickets click here. Members should make use of their coupon code at checkout.