It is trite, but true, to say that the marketplace has become global in its scope and access has become virtually instant. The visual art marketplace now shares many more common technological features with, say, the music business, publishing, film and television than was possible before the invention of the microchip and other digital storage, retrieval and communication systems. In the field of visual art, these provisions are frequently further stretched and tested by artists’ intentions in relation to the use of copying, deliberate plagiarism and questioning of the notions of originality and authorship as central intentions of their work. Le Corbusier is alleged to have commented, perceptively, that all artists steal, but the truly original artist repays a thousandfold.

Governments across the globe, in Europe and the US in particular, have in recent years been developing new policies and legislation to keep pace with changes reflecting technological development, and offer better legal protection to the authors of original works. However, it is almost inevitable that such changes will lag or drag behind commercially driven technological and business innovations and initiatives. Courts in the developed world have also been asked by complainants and so-called victims of technological abuses to respond by offering just remedies within existing laws.

EU Copyright Directive
A new EU Copyright Directive has recently been the subject of public consultation by the UK’s Patent Office, prior to the UK Parliament’s bringing the Directive’s provisions in to UK law. This directive closely follows recent US legislation – the Digital Copyright Act, enacted several years ago. The US Act introduced ‘technical protection measures’ which outlaw the circumvention of laws to protect software against unauthorised copying or amendment. In other words, in the US today – and soon in the UK – legal action can be taken against anyone who makes copies of any electronic file, or makes any tool or service designed to facilitate such activity.

Such legal constraints are imposed over and above current copyright law (which protects original authors against unauthorised reproduction, merchandising, and so on, of their original works), and places in the hands of software creators the legal power to control the use of their formats. In effect, the person or organisation that creates a new digital format will, by law, be able to prevent others from manipulating or otherwise using it without a licence or other authorisation – as if they were creating an original artwork, piece of music, literature or film. Moreover, under the UK’s proposals for implementing the EU Copyright Directive, the ‘fair dealing’ exception common throughout the copyright world (to permit unlicensed copying for private research, study, criticism or review, for example) will not feature in relation to the new ‘technical protection measures’. For further information see:

The history of art is littered with examples of copying, plagiarising, faking or even forging well-known works or works in the style of well-known artists. In some celebrated cases, the copied artist is known to have signed and effectively validated such appropriated versions – contemporary accounts suggest that Cézanne and Duchamp certainly did so; and Picasso is recorded as having once remarked that if the counterfeit was a good one, then he would sign it.

Regular readers of this column will recall that in recent times the UK artist Glenn Brown is alleged to have breached the copyright of illustrator Anthony Roberts, through his painting Loves of Shepherds, 2000, which is still the subject of legal dispute following the exhibition of Brown’s painting as a shortlisted candidate for the Turner prize in 2000 (see Artlaw AM243). Brown’s early career included his appropriation of the works of some of his contemporaries, such as Hirst.

Hirst himself got into legal difficulties over his sculptural work Hymn – said to have been a breach of copyright of the anatomical construction kit on which he based the work. Currently in the US, artist Eric Doeringer makes small copies of some of the works of his young contemporaries, and sells them on the streets of New York for around US$20. These are obvious fakes and no pretence is made otherwise – indeed this is part of the point of Doeringer’s work. For further information see:

Appropriation in the US
Allegations of copyright breaches made against artists are few and far between, and rarely go to full trial before the courts. However, a case was recently brought in a New York State District Court against the artist Barbara Kruger. The judge ruled in the artist’s favour last year, and earlier this year published his written reasons.

The complainants were the German photographer Thomas Hoepker and Charlotte Dabney who was the subject of one of his pictures. It was not in dispute that Hoepker had made a work by photographing Dabney through a magnifying glass and published it in 1960 under the title Charlotte As Seen By Thomas. Nor was it in dispute that Kruger had appropriated Hoepker’s image in 1990, adding some red triangles and text It’s a small world. Kruger had sold her work to the Museum of Contemporary Art in Los Angeles, where it was shown; and the image was used on the Museum’s merchandise and exhibition catalogue. The Whitney Museum also exhibited the work in 2000, and similarly reproduced it on merchandise and advertising hoardings for the show.

The defendants were Kruger and the two museums, who were alleged to have breached Hoepker’s copyright and Dabney’s right to privacy. The Court’s decision on the copyright issue was that Hoepker was entitled to copyright protection in the USA, only up to 1988 when US copyright law changed. After this time Hoepker could have renewed his copyright protection in the US, but only if he had formally applied to do so. He did not. Therefore, when Kruger appropriated his work in 1990 she was legally entitled to do so. Curiously, US copyright law changed again in 1994 and automatically brought Hoepker’s copyright back in to the legal framework, and now lasts until 2055. However, Hoepker would have had to serve notice on Kruger that he wanted to enforce his copyright so as to prevent the merchandising of his/her image in 1999 and 2000 by the museums. He did not do so.

As for Dabney’s claim for breach of her right to privacy, the court decided that her image was not used by the museums for advertising or trading purposes. The reason for this appears to be that the artist had a superior right under the US Constitution to ‘freedom of speech’ (which, interestingly, includes visual artistic expression).

Appropriation in the UK
The development of copyright law in the UK has been very different to that of the US. Although the UK generally extended the length of copyright by 20 more years in 1996 (from the artist’s lifetime plus 50, to plus 70, years after death) there has been no system requiring formal registration or claiming of copyright protection in modern times. Unlike the US, where original authors/ artists were required to do so until several years ago. Accordingly, the basis for Kruger’s legal victory would not have applied in the UK, where artists automatically acquire copyright in their original works as soon as they are made and without further formality.

In relation to the privacy right claimed by Dabney, the photographer’s model, UK law has always been very different to the US. There is no written constitution in the UK and therefore no guarantee of the right to free speech; whereas the US Constitution, which stands superior to any legislation and must be compatible with it, has for decades guaranteed every US citizen the right to free speech. But in recent years the European Convention on Human Rights has been incorporated into UK law through the Human Rights Act 1998. By the Convention and the UK Act, UK citizens are now guaranteed the right to freedom of expression. It remains to be seen whether the UK courts would find that an artist’s right to express themselves through their works would be a viable defence to an allegation of breach of privacy (which in the UK is known as breach of confidentiality). It also remains to be seen whether the UK courts would entertain a claim by an ‘appropriation’ artist that they had the legal right to do so as a form of expression – even if such an act breached the copyright of the original artist whose work had been appropriated.

It is likely that, when the EU Copyright Directive is enacted into UK law, anyone who appropriates digitised images stored in any electronic form would be acting unlawfully in breach of the Directive’s ‘technical protection measures whether or not they were also in breach of any copyright in original visual art work residing within that software.

© Henry Lydiate 2003
In the age of digital technology, the world wide web and e-commerce, the appropriation of images is greatly facilitated and occurs on a much greater scale and faster than at any previous time in art history.

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.