Art feeds on art, i.e. it adapts, borrows, copies and is inspired

An exhibition entitled “Cannibalism? On appropriations in art” is currently being held at the Zachęta National Gallery of Art in Warsaw. This exhibition deals with the adaptations, sampling, borrowing and processing of culture. One could say: “art feeds art” which is a notion that led to the creation of so called “appropriation” art. From the perspective of an art historian, modern art could not exist without references to the output of previous generations. It is sometimes said that “all of this has happened before”, so requiring the artist to be fundamentally original not only is expecting the impossible, but could also be interpreted as ignorant.

Law, however, must strive to impose a rigid framework on reality – in this case this relates to art that by assumption only rarely fits within any ordered structure. But we can’t help but pose the question: when is it permissible to use and make references to the output by other authors (obtaining contingent consent or concluding agreements with original authors notwithstanding)?

In the beginning, we should consider what constitutes the subject of borrowing or reference in any given case. The mere idea of a work or performance, artistic or directorial style, choice of materials are not subject to copyright protection. By extension, as a rule everyone may use them and implement them in their own works. Although one should bear in mind that should art become a commercial venture and should it become possible to prove that the artist’s behavior violated good practice, the case may swiftly move over to the field of unfair competition. You should also take some time to consider whether your action does not violate personal rights in the form of artistic creation. Finally, one should not forget that there are court opinions – fortunately only in the US – that attempt to extend copyright protection beyond all reason stating that plagiarism may include copying someone’s style – like in the well-publicized case (described recently on our blog) of the “Blurred Lines” song.

Still inspiration or already compilation?

It is vital to determine whether as a result of inspiration an autonomous or non-autonomous work (i.e. compilation, a work in which certain elements have been borrowed) was created. The inspiration itself is legally permitted and does not require anyone’s consent, while disposing of and using non-autonomous works requires the consent of the author of the work from which it was borrowed. An exception to this rule is the situation when our actions fall within the “permitted use” exemptions (e.g. within the boundaries of the right to quote) or when copyrights to such work have expired (disregarding the question of posthumous execution of moral rights and protection of a personal right to the veneration of the deceased person’s memory). It is thus vital to set the boundaries between an inspired work and a derivative work. In the opinion of the Supreme Court of Poland, the level of creative transformation of elements of the work that served as inspiration may provide the demarcation criterion. Therefore, particular elements of an inspired work, and not the elements that were borrowed from another work, should define the nature of such work.

When quoting is permitted…

The Copyright and Related Rights Act provides for certain limitations on the copyright monopoly that are known as permitted use. For example, the right to quote constitutes so called public permitted use. However, exercising such right is subject to a number of conditions. First of all, extracts of works or small works in their entirety may be quoted only in works forming a self-contained whole. It may be assumed that most works of art fulfill this condition. Moreover, as a rule, a quote should be provided in such a manner so as to be distinguishable and, allowing for existing possibilities and custom, should be designated with personal data of the quoted author and the source of origin. Finally, it is worth remembering the Act permits using quotations in the scope justified by explanation, critical analysis, education or right of genre. In jurisprudence, it is assumed it applies to such “genres” as parody, pastiche and caricature, but it could also be argued it comprises such forms of art as e.g. collage. A Copyright Act amendment is currently in the works that intends to introduce changes to inter alia the right to quote – but it is hard to guess what will remain of the very rational amendment draft since subsequent stages of the legislative process are prone to introduce smaller and bigger surprises.

The exhibition under the watchful eye of lawyers

A lawyer seeing the exhibition in Zachęta will not be able to shrug off the feeling that exhibits or installations often balance on the edge of what is permitted and what is not, on the edge of inspiration and compilation, quotation and plagiarism. One should remember the legal assessment of works of art may not boil down to a rigid analysis of provisions of law and judicial decisions, while disregarding the artistic expression and frequently also purely non-commercial nature of the work. Despite the fact that our copyright law does not feature such general provisions that would correspond to US “fair use”, ultimately when interpreting provisions of law we may not completely ignore principles of fairness, local customs or finally, common sense.

For lawyers dealing with intellectual property in their everyday work the exhibition at Zachęta should be a compulsory visit which may prove exceptionally inspiring.