Copyright Law in India and obviously outside also plays a very important role in protecting the rights of the artists for their original and creative work. In this paper, the researcher has dealt with the concept of contemporary art. The aim of this paper is to find out whether the present Copyright Law is sufficient to deal with the developments in the field of art, the points of conflict between the contemporary art practices and the present copyright law and the ways to maintain the harmony between the two by the help of judicial interpretations.

What is meant by Contemporary Art?

There is no such  definition which exactly defines the term “contemporary.” Generally, this term is used to denote the post modernisation period or the period starting from the end of World War II i.e.,mid 20th century till early 21th century.. So, contemporary art means the artistic work which developed after modern art or during the mid 20th century and in the early 21st century or after World War II. This art is generally regarded as of innovatory or avant-garde nature.

Contemporary art or the art of today or Postmodern art is considered to be unique because it does not have its own origin rather it is based on reinventions and re-characterization of the existing art thereby giving a fresh interpretation to the same like Appropriation art.

The term “contemporary art” encompasses within itself a wide varieties of arts like it includes works related to visual arts, techniques related to installation, performance, minimalism and Conceptualization, Pop art, Digital art, Multimedia, Appropriation art, Abstract art, Figurative art, Geometric art, Still life art, Surrealist art, Sculpture art etc.

Point of conflict with Copyright Law in reference to Appropriation Art

As we all know that Copyright plays a very crucial role for the protection of artistic work and is considered to be a valuable asset for an artist. Copyright is a kind of intellectual property and India has laws for the protection of intellectual property. The Copyright Act in India was enacted during British regime and it has developed from the common law itself. India is a member of Berne Convention  for the Protection of Literary and Artistic Works, 1886,  Universal Copyright Convention, Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organisation (UNESCO). So, in order to give effect to the international treaties, India enacted Copyright Act, 1957along with the Copyright Rules, 1958 which are at parity with the TRIPS Agreement and this Act has been amended several times- latest in 2012.

The Copyright Act gives protection to many kinds of works and one of them is artistic work.the definition of ‘artistic work’ has been defined in Section 2(c) of the said Act as follows:

“artistic work” means,-

  1. a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
  2. an work of architectural; and
  3. any other work of artistic craftsmanship;

So, by this definition it is clear that contemporary art (appropriation art) is also included in artistic work i.e., it is within the ambit of the Copyright Act, 1957 but the unique features of the contemporary art poses challenges to the copyright laws.The root problem lies in the fact that since most of the contemporary art styles are based on the existing art (say in case of Appropriation art) so the question here arises is that when does the right of an artist end and when does the right of another artist start. When this question is being put to a layman then he would certainly answer that the right of that artist should be curtailed who wishes to copy the art of another artist. But the answer to this question should not be a simplistic one rather we have to see from the legal perspective.

The answer to this question lies in the fact that all arts borrow inspiration from some pre-existing knowledge or idea or any other art which may relate to other artists.Therefore, curtailing the rights of a contemporary artist is not a solution to this problem and also the rights of the original artist can’t be done away with as ignoring the rights of the original artist will vitiate the very purpose of the intellectual property laws.

What can be the viable solutions to the present problem?

ORIGINALITY CRITERIA

“An original artist is unable to copy. So he has only to copy in order to be original.”

-Jean Cocteau

Section 13 of the Copyright Act, 1957 says that copyright shall subsist in ‘original’,literary, dramatic, musical and artistic work but this Act does not define the concept of “originality” as such. This we have to understand by the help of judicial interpretations. What is the level of the ‘originality’ to claim copyright protection depends on the courts i.e., whether a given work will be called ‘original’ or not will depend on what courts decide- it can vary from court to court.

The concept of “originality” and “Idea- Expression Dichotomy” are inseparable concepts. The idea-expression dichotomy originated in the U.S.in the year 1879 in the case of Baker v. Seldon.[1] According to this doctrine, copyright protection shall be given to the expression or material form of an idea and it does not exist in the novelty of the idea itself. Therefore, the work should be original and novel and it must originate from the author himself but the idea need not to be necessarily new.

As we don’t have any unified and definite concept of”originality” so in order to ascertain the “originality” in any work, there are various doctrines used in various jurisdictions for which need to be studied:

Sweat Of the Brow Theory

Sweat of the brow theory is an intellectual property doctrine which is mainly related to copyright law. This doctrine was established in 1900 in the UK in the case of Walter vs. Lane. In this case, few news reporters reproduced the political speeches by Lord Rosebery in  the verbatim form and claimed copyright thereon. The House of Lords in the present case held that the reproduced verbatim has the copyright protection and thereby introduced a new concept known as ‘Sweat of the Brow’ theory which entirely depends on the skill and labour of the author and the author gets the rights only on the basis of simple diligence and substantial creativity or “originality” is not required. The rationale behind this doctrine was to protect and reward the author for the hard work that was put in compiling and collecting the facts.

Position in U.K..-

The “originality” criteria was addressed in the following case:

University of London Press vs. University Tutorial Press.[2]

In this case the House of Lords held that ‘original’ does not mean that the work must be an expression of original or incentive thought. The Act does not require the expression to be original or novel one rather it requires that the work should not be borrowed or copied from the work of another rather it must originate from the author itself.

Later, in the case of Interlego AG vs. Tyco Industries Inc.,[3] again the issue of “originality” was raised and the court held that  skill, labour and judgement in mere copying or compyling can’t confer “originality” in the work. Also in the recent case of Designer Guild Ltd. vs. Russell Williams (Textiles) Ltd.,[4] the court talked about the substantiality of the copied work.

But the doctrine of ‘sweat of brow’ continued to exist as in the case of Sawkins vs. Hyperion Records Ltd.,[5] the court upheld the traditional doctrine which was laid down in Walter vs. Lane.

From the above, we conclude that the “originality” criteria in the UK are very low.

Modicum of creativity

Position in U.S.A.-

USA laws on copyright are known to be the oldest and most developed copyright laws in the world. The US courts have always been known to protect the creative contribution  of the authors for many years. The US Supreme court has negated the ‘Sweat of the brow’ doctrine in the case of Feist Publications, Inc. v. Rural telephone Service Co.[6] and held that for a work to be an original one, it should be an independent creation of the author and it must exhibit a minimal degree of ‘creativity’ to be eligible for protection under Copyright law. This theory is called ‘Modicum of creativity.’ This theory lays down that the degree of creativity must not be very high, even a minimum level of creativity will work. As per this theory, “originality” subsists in a  work which involves some intellectual creativity and judgment should be used to create that work. 

Position in India-

For a long time, India followed the ‘Sweat of the Brow’ doctrine but the standards of ‘originality’ that were followed in India were somewhat higher than those followed in England.

The Privy Council in the case of Macmillan and Co. vs. K & J Cooper[7] accepted the ‘Sweat of the Brow’ doctrine. The Hon’ble Delhi High court in the case of Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr.[8] also accepted the ‘Sweat of Brow’ doctrine.vcjn 

But the Hon’ble Supreme Court in the case of  Eastern Book Co. vs. D.B. Modak[9] rejected this English doctrine and adopted the theory of ‘Modicum of creativity’. This case is pertaining to the issue whether judgements are copyrightable or not. In this case, the plaintiff is the reporter of Supreme Court Cases. The plaintiff is aggrieved by the other parties who upload the cases reported by SCC along with their editings like the case comments, cross-references, headnotes, formatting of text, para-numbering which makes the raw judgement of the courts easily readable and understandable by the readers.

The court in this case held that preparing headnotes, cross references, short notes, long notes, brief description of the facts and extracting important part of the judgement, formatting etc. require sufficient level of creativity, skill, judgement, legal knowledge of the editor thus this editing made by the plaintiff is called ‘original literary work’ and it has a ‘flavour of minimum creativity’ and is eligible to get protection under Sec. 13 of the Copyright Act and the respondents have infringed their copyright under Sec. 14 of the said Act. The court also held that since the judgements are a part of public domain thereby accessible by anyone therefore, no one can claim copyright over the raw judgements of the courts.

The Hon’ble Supreme Court in this case by referring to the judgement of the Canadian case[10]  also laid down that since the ‘sweat of the brow’ approach to “originality” is too low a standard which shifts the balance of copyright protection too far in favour of the owners right, and fails to allow copyright to protect the public's interest in maximizing the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high.A creative standard implies that something must be novel or non-obvious - concepts more properly associated with patent law than copyright law. Therefore, the author must produce a material with exercise of his skill and judgment which may not be creative in the sense that it is not novel or non- obvious, but at the same time it is not the product of merely labour and capital. The court also said that the derivative work of the author must have some distinguishable feature and flavour and trivial variations does not lead to copyright protection under this Act.

Some cases related to this concept:

Blanch v. Koons[11]

In this case, the Second Circuit held that defendant’s appropriation of plaintiff’s photograph constituted fair use and affirmed the district court’s grant of summary judgment. The court deemed the collage transformative because defendant used the photograph as “raw material” in the furtherance of distinct creative or communicative objectives. The court ruled that the creation and exhibition of the painting could not fairly be described as commercial exploitation, that “commerciality” of the use is not dispositive in any event, and that there was insufficient evidence of bad faith on the defendant’s part. Additionally, the court found that the amount and substantiality of the copying was reasonable in relation to its purpose and that the painting had no deleterious effect on the potential market for or value of the photograph[12].

Another Point of Conflict in reference to Conceptual Art

The current copyright law in India recognizes and protects only those works where ideas and expressions are separable and hence does not consider the works where the two are merged. Conceptual artwork, which is a kind of contemporary art, doesn't fit properly on this parameter. In India, only expression is entitled to protection and the idea as a sole entity, because ideas are too valuable to be copyrighted and hence cannot be monopolized. The idea- expression doctrine poses a challenge to the copyrightability of this art.

Solution:

Here applies the doctrine of merger. As per this doctrine where the idea and the expression of that idea are so inter-mingled with each other that there is only a single way of expressing that idea then that expression is not eligible for copyright protection under the Indian Copyright laws. Let's have a look on some of the cases:

An important case in this regard is that of RG Anand v. Deluxe Films[13]. The plaintiff was the author of a play called Hum Hindustani. In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff expressing his desire to make a movie based on the play. The plaintiff and the defendant met and discussed the entire play. The defendant did not commit anything, but the plaintiff later came to know that the defendant released a movie titled New Delhi. After watching the movie, the plaintiff was of the opinion that it is based on the story of his play. So he filed a suit against the defendant for permanent injunction and damages. Both the District Court and the High Court ruled against the plaintiff on a finding of fact. The case finally reached the Supreme Court of India[14].

The Supreme Court held that the movie cannot be considered to be an infringement of the script of the play. The reason it gave was that though the idea behind both the stories was the same, the manner in which both had been expressed were vastly different from each other. Therefore it cannot be held to be copyright infringement[15].

More recently, in the case of Mansoob Haider v. Yashraj Films[16], the Bombay High Court reiterated the fact that ideas are not copyrightable. The residue left behind after filtering out dissimilarities is the idea which is not copyrightable and similarity of ideas does not lead to copyright infringement[17].

Not all ideas can be expressed creatively. Often, there are ideas that can be expressed in only a particular way. In such a case, copyrighting the expression would amount to the copyrighting of the idea that would in turn stall the free flow of ideas[18].

In every such case where the expression is necessary to effectively communicate an idea, courts apply the Merger Doctrine to find that no copyright subsists. The Merger Doctrine primarily seeks to address the point where ideas and expressions converge[19].

An important case in this regard is that of Morrissey v. Procter & Gamble Co[20]. This case primarily dealt with a competition/contest and whether its rules are a subject for copyright. The court held that the idea of the contest is merged with the rules. Copyrighting the rules would amount to copyrighting the idea of the contest and therefore the rules are not a subject matter of copyright[21].

Likewise, in the case of Joshua Et-Hokin v. Skyy Spirits[22] Inc the question arose about some photographs of the iconic blue bottle of Skyy Spirits. The Court held that since there are only a few ways in which a bottle can be photographed, the pictures cannot seek copyright protection[23].

Cases in the present have been decided on the basis of the above cases. However one fails to realize that this undermines the effort invested by the author or the creator. For example, consider the photographs of the bottle. It is obvious that the no two photographs of the bottle clicked by two different photographers can be the same. Even the variation in a slight angle can cause a huge difference. In such cases, the idea-expression dichotomy proffers no solution and is therefore, at times, inadequate[24].

Conclusion

The field of art is ever growing and it does pose certain challenges to the Intellectual Property Law due to its unique features.

As from the above, we have seen that most of the contemporary art styles are derived from the existing art. The question that was posed at the starting of the research was when does the right of one artist start and when does the right of another artist end. The answer to  this question lies in the fact that since originality is the sole basis of criteria for granting copyright protection so the copyright shall be provided to that artist whose work has a flavour of uniqueness in his work and his idea behind that art is different from the earlier one and as per Supreme court judgements, his work should have a minimum level of creativity and which is not exactly the same as earlier and it should not be only based on skill and labour but there must be some degree of creativity to be qualified to get protection under the Copyright Law.

The art need not to be original one because somehow every one borrows some idea from another artist. What is required is that it must be unique in its form and it must meet the degree of creativity required to get protection under Copyright law.

The researcher has arrived at this conclusion by referring to the Supreme court judgement by drawing an analogy with that.

In context of  Conceptual Art:

It is not that difficult to effectively incorporate conceptual art in the current copyright regime,

if the following measures are taken :

  • An extensive insight has to be made into the methods through which ideas and expressions can be valued in the works where they are deeply merged.
  • Merger doctrine has to be revived in an advanced manner.
  • Indian Copyright law has to incorporate the consideration of ideas which are unilaterally presented and have no scope for multifaceted presentation.
  • Ideas should not be generalized as generic or particular, instead they must be seen as a collaboration, apart from the actual expression.
  • Since art is an ever developing field which keeps including novel ways of assimilating ideas and presenting them through distinct expressions, the law protecting the original and most importantly, the progressive works, must also keep up the pace with such development. It cannot, every time, deal with contemporary issues using obsolete laws.

The Idea-expression dichotomy is too rigid to evolve in India. But due to the continuous modern art movements in India, things are expected to change and the scope of copyright law may expand.

Bibliography

Websites Referred:

[1] 101 U.S. 99 (1879)

[2] 1916

[3] 1989

[4] 2000

[5] 2005

[6] 499 U.S. 340 (1991)

[7] (1924) 93 LJ PC 113

[8] 1995 PTC (15) 278

[9] (2008) 1 SCC 1

[10]CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada) CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada)

[11] 467 F.3d 244 (2d Cir. 2006)

[13] AIR 1978 SC 1613

[14] “”Through the perceptible mirror to a shared reflection : A schematic challenging relationship between Contemporary Art and Intellectual Property - An Indian frame of reference” by Kirti Dubey.https://www.researchgate.net/publication/326010003_Through_the_perceptible_mirror_to_a_shared_reflection_A_schematic_challenging_relationship_between_Contemporary_Art_and_Intellectual_Property_-_An_Indian_frame_of_reference; last visited on 10.03.2021 at 6:00 p.m.

[15] Ibid.

[16] 2014 (59) PTC 292 (Bom)

[17] Supra Note 14

[18] Ibid.

[19] Ibid.

[20]  1967 U.S. App. LEXIS 5802

[21] Supra Note 14

[22]   225 F.3d 1068 (9th Cir. 2000)

[23] Supra Note 14

[24] Ibid.

About the Author: This post is prepared by Preeti, LL.M Student from Faculty of Law, University of Delhi. They can be reached at ppdha2018@gmail.com

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