Visualizing Copyright Law: Lessons from Conceptual Artists

ABSTRACT:

Copyright law does not require an object to be “art” to be protectable, except in one respect: copyright protection does not extend to useful articles. As a result, courts engage in analysis strikingly similar to that of conceptual artists* visualizing art. Copyright law has an uneasy relationship with conceptual art because the Copyright Act also requires works to be original and fixed in a tangible medium. Requirements that have led some to conclude that the kind of art where “the idea or concept is the most important aspect of the work”** should not be protectable by copyright.

This article examines the Readymades of Marcel Duchamp, the Wall Drawings of Sol Lewitt, Felix Gonzalez-Torres’s Candy works, and comments on the work of several other artists to explore how art interacts with and in some ways informs copyright law. I suggest conceptual art has anticipated and posed litmus-test problems for copyright law. Moreover, the copyright conundrums suggested by conceptual artists are not unique to that art form. Photographers like Ansel Adams, who championed the conceptual nature of photography, practice an art form protected by copyright since the late 19th century. Understanding their work can serve as a bridge to appreciating conceptual art as well.

This Essay celebrates that urinals, Brillo Boxes, bananas duct taped to walls, hundreds of pounds of candy spilled on the floor, and even the revocation of all aesthetic intentions can be art. It demonstrates that we can learn something of value to copyright law if we stop worrying and learn to love art.


* This essay uses the term conceptual art and conceptual artists broadly to encompass art movements including minimalism where the realization of the work is not fully in control of the artist and may depend on fabricators or installers, or readymade objects, may be site specific, and where the concept and planning needed to effectively manifest the work is of primary importance.
** Sol LeWitt, Paragraphs on Conceptual Art, ARTFORUM, Summer 1967.