Copyright Protection in the Era of Postmodernism
The objective of the Copyright Law is to protect artistic creations in a society as well as incentivize people to create art thus, enriching the society. The Law does not provide a specific set of defined works which shall be protected under it but merely establishes certain considerations which are to be met for a work to be protected under the Copyright Law. These considerations include the originality requirement as well as that an expression of any idea, etc. While the principles of the copyright are purposefully broad to include a wide ambit of works within its protection, an issue arises with respect to postmodern art, as the latter is not in consonance with even the traditional norms of the copyright law.
WHAT IS POSTMODERN ART WORK?
Postmodernism, while never entirely defined, is understood as a philosophical and literary movement which flourished in the 20th century and trickled into the 21st century. As may be derived from its name, this movement generally goes on to challenge the visceral foundations established in the Modern period throughout the 17th – 19th Centuries. This movement essentially resulted in artwork which is made with the intention of rejecting the traditional concepts of ‘Art’. Thus, Postmodern art work, in essence, comprises of works which question the notion of originality as well as the conservative idea of what ‘expression’ entails. One of the most common expressions of Postmodern Art is Appropriation. This refers to artwork which is created by lifting parts of pre-existing artwork and using the same to form a new expression of the work. An essential aspect of postmodern art is conveyance of certain philosophical or political ideas which results in a new artwork supported by precarious principles of originality. Since there are a plethora of categories of postmodern artwork, this article is predominantly written considering the features of Appropriation of art.
TRADITIONAL CONCEPTS OF COPYRIGHT LAW
The Law of Copyright across jurisdictions requires certain general principles to be complied with for any artwork to be copyrighted. One such principle requirement is ‘Originality’, which requires a work to be an original expression of any idea to be viable under the Copyright Law,. Another mandatory requirement is that the work shall exclusively only be an expression of any fact, concept, theme or plot, etc. This understanding may be derived from the idea-expression dichotomy which intrinsically establishes that only an expression of an idea can be copyrighted and not the idea itself. These requirements are backed by the twin objectives of the Copyright Law which are :
Promotion of artistic, literary, dramatic works, etc. in the society to incite a culturally enriched society.
Grant of due credit to the authors of such works through exclusive rights as well as other rights related to their creations.
INTERACTION BETWEEN COPYRIGHT LAW AND POSTMODERNISM
Since postmodernism is a philosophical theory, it also inspires the artwork of an entire generation of artists, its emergence raises the questions regarding the copyrightability of these artworks. Further, the Scholars’ opinions on the understanding of postmodern art is also conflicted. While some scholars believe that the postmodernist expression conveyed via artwork is a new mode of empowering the society via their ideologies, while enriching it with new forms of art and culture. On the other hand, critics believe that postmodernism is merely a literary and philosophical movement intended to transcribe the ambitions of politics or psychology, etc. via art. They view the artwork inspired by postmodernist ideologies as a work subservient to art as it loses the essence of art itself.
The question, thus, which has led to lengthy discord between the artists and well as the scholars of law is whether the Copyright law should be altered to accommodate the non-traditional tendencies present in postmodern art. It is argued that altering the enacted legislations to incorporate postmodern art would mean to create an unspecific set of regulations without any instance of caution or consideration to artistic expression. An alteration to incorporate all the contemporary form of artworks would lead to a very broad understanding of copyrightable art which may even include ideas instead of specifically the expression of these ideas.
But, on the counter aspect, arguments may also be made which heavily factor in the essential objectives of the Copyright Law and thus establish the need to protect postmodernist expression in art via Copyright Law. By citing the need for a culturally progressed society as well as the promotion of artistic works in the society, it becomes apparent that granting copyright protection to the postmodern art industry will result in enrichment of the society. Further, inclusion of such artwork under the Copyright Law will not only acknowledge the credit due to its artists but it will also promote exploration of new, uncharted territories. It may be argued that works such as Jeff Koons’ sculptor, which was held to have infringed the copyright of a photograph owned by Art Rogers owing to appropriation, or Andy Warhol’s institution of commercial symbols in his paintings are considered as essential works making a statement in the development of postmodernism as an art movement and thus, deserve to be recognized as protected works under the copyright law.
It is imperative to understand that the alterations in the existing Copyright Law, to accommodate postmodernist artwork, will not result in a complete upheaval of the existing principles. They will merely result in lowered standards of certain essentials such as ‘Originality’, while boosting other principles of the Law for instance the requirement of expressions in the art. A postmodern expression of art is essentially only a specimen of an entirely original expression of an idea or a concept, even if the elements of the work itself are not entirely original. Thus, in my opinion, to protect the cultural features of postmodernism, any artwork inspired by the same should be protected. This would ensure that the enriching impacts of the movement do not suffer.
Though the current position of postmodern expression of art in form of appropriation is decided against protection, it must be understood that an incorporation of such art within the copyright law would be entirely in accordance with the objectives of the copyright law. Such protection, if granted, would further the development of Postmodernist expression of art as well as encourage more people to express their views in various forms of art. This will, in turn, result in promotion of artistic development in the society.
E. Kenly Ames, Note, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation, 93 COLUM. L. REV.1473, 1477 (1993).
JAMES GARDNER, CULTURE OR TRASH? A PROVOCATIVE VIEW OF CONTEMPORARY PAINTING, SCULPTURE, AND OTHER COSTLY COMMODITIES vii (1993).
Lori Petruzzelli, Copyright Problems in Post-Modern Art, 5 DePaul J. Art, Tech. & Intell. Prop. L. 115 (1995) Available at: https://via.library.depaul.edu/jatip/vol5/iss1/5
Lynne A. Greenberg, The Art of Appropriation: Puppies, Piracy, and Post-Modernism, 11 CARDOZO Arts & ENT. L.J. 1 (1992).
Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), cert. denied sub. nom. Koons v. Rogers, 113 S.Ct. 365 (1992).
Steven Shonack, Postmodern Piracy: How Copyright Law Constrains Contemporary Art, 14 Loy. L.A. Ent. L. Rev. 281 (1994).