Introduction to the ‘Law and the Arts’ series

Welcome to the ‘Law and the Arts series! Over the year I’ll be exploring core foundational features and principles within UK art law, delving into their basic characteristics, the history of their development, summarising famous cases, and citing the commentaries of relevant authorities discussing the future of each respective area in the perpetually evolving digital age.

Basic overview

Intellectual property rights are foundational to the protections of artists work and the sustenance of their economic, social and cultural value. In this article I’ll cover the basis of a selection of protections detailing how the basic rights afforded by these legal concepts can and are utilised to protect their work. The following will be covered: copyright, trademarks, design rights, moral rights and trade secrets. Next time I’ll follow up with a piece detailing the historical development of intellectual property rights within the arts, exploring how these protections came to fruition and how they might manifest in an evolving digitised art sphere. Stay tuned and enjoy!

Copyright

At its core, copyright gives artists the right to control the sale, replication and derivation of their work. In order for artists to qualify for copyright protection, their artwork is required to be: ‘original’ and ‘fixed in material form’. As long as their work adheres to these criteria, I understand that copyright protections arise automatically. These protections typically last for the duration of an artist’s lifetime plus seventy years posthumous (after death).

The relative ‘originality’ of a work depends on the contents being the author’s own creation. While it can draw inspiration and incorporate features of pre-existing works, it must materialise as more than a copy. The concept of its ‘fixed materiality’ requires the art to manifest in a tangible recording; for example: paper, clay, canvas, or stone. Developments of technology in the digital age has led to a paralleled expansion of the arts into digital formats; subsequently the copyright ‘fixed material’ requirement has adapted to incorporate the protection of digital artworks, such as NFTs.

The digital evolution of copyright protection has supported protection for artists, buyers, and traders contributing to the sustenance and growth of the NFT market to a staggering $76.46 billion market capitalisation today (11 November 2024 via Forbes live tracker).

Where copyright protects the economic interests of artist’s and artworks, as a subset of copyright with the shared aim of protecting innovators, moral rights protect the non-pecuniary and non-economic value held by artists’ and their work.

Moral rights

An artist’s integrity and reputation can significantly influence the value of their work, this contributed to the legal market for moral rights and protections from degrees of injury caused by potential false attribution and the derogatory treatment of their portfolio. Moral rights come in the form of right of integrity and right of attribution which can be awarded for the duration of the artist’s lifetime and 20 years posthumous.

In the US, 21 graffiti artists famously won a moral rights case referencing the Visual Artists Rights Act against property developer Wolkoff. The building complex had been transformed into a valuable cultural attraction by the artists adorning the 5 Pointz building complex in New York with highly skilled graffiti. Without prior notice Wolkoff white-washed the walls and began construction of luxury apartments on the site. The judge recognised Wolkoff’s actions as abusing the moral integrity of the work which had culminated a value of $6.75 million. This was ultimately awarded in damages to the artists affected.

Additional intellectual property rights afforded to artists can include: trademarks, design rights, and (less frequently) trade secrets.

Trademarks and trademark rights

Signs, symbols, slogans that distinguish goods and services can be trademarked and protected via trademark rights afforded by geographic jurisdictions. These protections nominate ‘negative rights’ to the owner to manage the use and replication of their sign or symbol in commerce via prohibiting non-authorised individuals from its further use. Trademark rights typically last 10 years and have the potential scope for indefinite renewal. They are particularly useful in protecting artist’s branding identity which is a key tool in establishing the value of their works and market presence in an increasingly competitive industry.

Renowned street artist Banksy has attempted, unsuccessfully, to protect a selection of his works such as ‘Love Is In The Air (Flower Thrower) using trademark rights protections.

In 1998 Tiffany & Co. trade marked its iconic blue branding colour ‘1837 Blue’ which initiated trademark pursuits from multiple luxury retailers including Louboutin, Hermes and Gucci. Similarly Anish Kapoor purchased trademark rights to the use of the colour ‘Vantablack’ in artistic capacities in recognition of its value to his art in its capability to absorb 99.965% of visible light.

Design rights

Design rights enable artists to protect the aesthetic elements of their work typically related to a product’s design (as opposed to brand identity although, the features of their design may inform their brand identity). For example, the chefs who created the iconic Toblerone triangular prism, Emil Baumann and Theodor Tobler, protected the shape of the product by acquiring design rights. These rights typically last between 3 and 25 years and are subject to renewal.

Trade secrets

Trade secrets have played an increasingly prevalent role in the art industry influencing all those involved in the creation, marketing, exhibiting and trading of art. Trade secrets rights afford the protection of valuable confidential information such as: artistic techniques, client relationships, sales strategies, propriety materials, and digital art techniques such as software algorithms.

Conclusion

This article explored key concepts within intellectual property rights within the arts: copyright, trademarks, design rights, moral rights and trade secrets. Next week I’ll follow up with the historical development of intellectual property rights within the arts, exploring how intellectual property rights protections came to fruition and how they might manifest in an evolving digitised art sphere.

If you’re interested in exploring some of the resources used in curating this article please find each reference below. All references are available to us via the City Library:

TEXTBOOKS:

Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases, and Materials (4th edn, Oxford University Press 2021) find in our library.

Lionel Bently, Brad Sherman, Dev Gangjee, and Phillip Johnson, Intellectual Property Law (6th edn, Oxford University Press 2022) find in our library.

You might also want to look at books written by City’s own IP experts: Enrico Bonadio (latest book: NFTs, creativity and the law : within and beyond copyright (Routledge 2024), Patrick Goold (latest book: A Critical Introduction to IP Law (CUP 2024)) and Marc Mimler (latest contribution to Dutfield and Suthersanen on global intellectual property law (Elgar 2020)

CASES:

Banksy’s trademark dispute: Full Colour Black Ltd v Pest Control Office Ltd [2020] E.T.M.R. 58 (here’s the direct link to it in Westlaw – just choose the Open Athens method of logging in)

JOURNAL ARTICLES:

5Pointz Graffiti case: Iljadica M, ‘Graffiti and the Moral Right of Integrity’ (2015) 3 Intellectual Property Quarterly 266-288 (here’s the direct link to it in Westlaw – just choose the Open Athens method of logging in)

LIVE STATISTICS SITES:

Forbes Staff, ‘NFT Prices Are Falling: What You Need to Know’ (Forbes, 12 November 2024) https://www.forbes.com/digital-assets/nft-prices/ accessed 12 November 2024.

ONLINE ARTICLES:

Steigrad A, ‘Tiffany Backs Louboutin In Red Trademark Case’ (2011) 202 WWD: Women’s Wear Daily, 86. https://www.proquest.com/docview/1434338932?pq-origsite=summon&accountid=14510&sourcetype=Trade Journals accessed 11 November 2024.

Éamon Chawke, ‘Toblerone Moves Mountains in Switzerland’ Briffa (16 March 2023) https://www.briffa.com/blog/toblerone-moves-mountains-in-switzerland/ accessed 12 November 2024.

The Collector, ‘The Vantablack Controversy: Anish Kapoor vs. Stuart Semple’ (11 November 2024) https://www.thecollector.com/vantablack-anish-kapoor-stuart-semple-controversy/ accessed 11 November 2024.

Big thanks to Frankie Reffell for having the idea for this brand-new series for Lawbore. We’re excited to see how it comes together over the coming months. Here’s a bit of background on Frankie:

Before City, I studied Sociology at Durham University where I focused my bachelors on  social policy and themes within modern democracy in the digital age. Outside of the classroom I enjoy attending lectures hosted in London on various topics I find interesting typically within art, women’s history, law in various contexts, photography, the environment, business, literature and fashion. 

As part of this year’s Lawbore team I intend to contribute articles covering the many incredible events listed on the Future Lawyer site, profiles in conversation with lawyers operating within the arts, book reviews and short features on topics within IP and Art Law.