Is the artist limited by anything other than his imagination? Duchamp’s Urinal and Andi Warhol’s Invisible Sculptures which is about the legal framework of artistic creation in contemporary art.

As we know, art does not stay still. No thought was likely given during the creation of the law to the problem of protecting the display of an ordinary urinal as a work of art[1], an installation consisting of a banana stuck to the wall with duct tape[2] or the placement of an artificial palm tree in the center of a city[3]. Radical forms of expression often aim to shock the viewer by drawing attention to specific problems, appealing to universal values or highlighting their crisis in the modern world[4]. Art installations and performances are only selected examples of artists’ activities, which, from a legal point of view, pose numerous difficulties, often escaping precise classification and evaluation. Today, works of this type appear on the order of the day and prompt considerations about their copyright status.

Guaranteed by Article 73 of the Constitution, the freedom of artistic creativity promotes creativity and the emergence of new cultural goods. Nevertheless, the law does not define what creative activity is. It seems accurate to say that the concept of artistic creativity is closer to philosophical and psychological categories than legal ones[5]. An attempt to define this concept was made by the Supreme Court, indicating that “artistic creativity is an activity that serves to express specific ideas and experiences and to bear witness as to certain attitudes and preference for particular values. From this point of view, copyright protection against the use of works in a way that violates their integrity and undermines the bond that binds their creators to them is justified”[6]. The importance of the signaled problem, given the fact that contemporary art is crossing the usual spheres, therefore raises the question of the relationship of copyright law to the products of human intellectual work. In an ideal world for creators, the only limit to their freedom would be their imagination. Still, remembering what to do to avoid exposing themselves to legal liability is worth remembering. In debates on this topic, the main focus is on the regulation of Copyright Law, the provisions of the Civil Code or even criminal law – usually Article 196 of the Criminal Code.

Anyone can be an artist, but can everything be a piece?

Although “anyone can be an artist,”[7] it is important to flag the issue of whether any form of artistic expression – called a piece or artwork – is subject to copyright protection.
Over the years, questions have arisen about whether a work can be eaten[8] and whether living art and paintings painted by forces of nature[9] fall within the legal definition of a work. On the other hand, according to the Copyright Law, copyright protection is granted to the creator by operation of law, provided that the work in question has the characteristics of a work within the meaning of the law[10]. This means that any manifestation of creative activity (the prevailing position in the literature amounts to equating the premise of creativity with originality[11]) of an individual character, established in any form, regardless of value, purpose and manner of expression, will be covered by this protection. It is worth noting that at the stage of application of copyright law, the statement that tastes are not discussed will find complete application, so it is possible to speak of work regardless of the level of acceptance or disapproval of the results of artistic work[12].

However, it should also be remembered that art creators often use unconventional and unprecedented techniques and methods, making art slip outside the legal framework, posing further challenges, if only in the form of meeting the premise of establishing invisible sculptures. The Supreme Court has attempted to clarify “establishment,” pointing out that the term means the assumption by a work of any form, however impermanent, but stable enough for the features and content of the work to have an artistic effect[13]. However, in this case, the issue is whether it is possible to establish something that is not physically there since the sculpture “does not exist.” Copyright law does not protect the creative process itself, but its results in concrete work, so it seems that the entire installation that housed the work, or the films “presenting” the invisible sculptures, could be considered such a work rather[14].

What every artist should know about using other people’s work?

However, in responding to the legal framework for artistic creativity contained in the Law on Copyright and Related Rights, it is necessary to start by pointing to the framework set by the rights of another creator. Plagiarism occurs when elements of another’s work are used to such an extent that the author manifests no creative activity and his work lacks the characteristics of originality[15]. In this regard, it is necessary to discuss dependent work, inspired work and the right of permitted use in the form of the right of quotation.

From inspiration to innovation

A dependent work is a reworking of the original work, characterized by the recognizability of elements of the original work in the new work (such as the main idea, plot flow, or characters). Although it contains elements of the original, it also introduces the creative contribution of the author of the dependent work, the extent of which may vary[16]. When creating a dependent work that elaborates on another’s work, it is necessary to include information according to which original it was developed. Such information is not required in the case of an independent work, in which another work served only as inspiration[17]. It should be remembered that the disposal and use of the development is subject to the permission of the original work’s author unless the original work’s copyright has expired.

A work created merely by inspiration from another work is subject to independent copyright as an independent work. An inspired work means taking only a thread from another work[18], and using general concepts and ideas about a project, product, or service that does not infringe copyright[19]. The essential criterion distinguishing an inspired work from a dependent work, which is an elaboration, is the creative modification of the elements of the inspired work in such a way that the character of the inspired work is already determined by its own individual elements and not by the elements taken over[20].

How do you legally incorporate other people’s works into your own pieces?

Next, it is necessary to point out the use of the work under the authorized use in the form of the right of quotation to ensure creative freedom in artistic expression, analysis and scientific criticism. Quoting is permitted only when justified by explanation, critical analysis, teaching or the requirements of the creative genre. The quoted passage should be as small as possible but large enough to achieve the purpose of the quotation and ensure comprehensibility to the audience, which means that the quotation should have a subordinate role to the main work[21]. A user who exercises the right of quotation should demonstrate that they have used the quotation in a way that is justified by the content of their speech to illustrate the argument under review or criticize a particular view. It is not a matter of simply incorporating someone else’s work into one’s own, but a legitimate use resulting from the course of the argument and the need to cite another’s observation or thesis accurately. Such justification is also necessary when invoking the rights of the genre of creativity since, in this case, the quotation must be motivated by the purpose it serves according to the regulations in question, that is, the confrontation of the user’s positions or views with those presented in the quoted work[22].

An example of the use of quotation in contemporary art is Richard Prince’s work in the Canal Zone series, which used photographs by Patrick Cariou[23]. Richard Prince was charged in federal court with illegally using photographs from a book about Rastafarians to create a series of collages and paintings[24]. The appeals court that heard the case ruled that “the law does not require that the secondary use refer to the original artist or work or popular culture,” but only that a reasonable observer would consider the work transformative. In its ruling, the appeals court said that most of Mr. Prince’s works present a “completely different aesthetic” than Mr. Cariou’s paintings[25].

Another regulation worth noting is the so-called “panorama law,” which involves using an image of a work permanently displayed in publicly accessible areas of public space. The panorama law legalizes permanently using pictures of recorded works in public spaces.

In addition, it is possible to inadvertently incorporate a work into another work as long as the incorporated work has no relevance to the work into which it is incorporated. In today’s reality, it is not difficult to imagine a situation where a copyrighted work is accidentally recorded and used as a “side effect” of other activities. For example, while taking a photo at a concert, a piece of copyrighted decoration may be captured, or while recording a private video in a shopping mall, a musical piece playing there may be heard in the background[26].

Creativity at home

Free use of an already distributed work without the author’s consent for personal use is also permitted. However, this provision does not allow creation according to someone else’s architectural or architectural-urban design, nor does it allow the use of electronic databases that work unless it is for personal, nonprofit scientific use.

In conclusion, the Copyright Law remains a key tool for protecting creativity. Despite the imposition of a small framework on artistic creation, this law’s provisions allow artists freedom of expression while protecting their rights and interests.

[1] https://www.thecollector.com/what-was-great-about-marcel-duchamp-fountain/.

[2] https://artdevivre.com/articles/comedian-by-maurizioi-cattelan-controversial-postmodern-artwork/.

[3] https://zpe.gov.pl/a/codziennosc-i-historia-w-polskiej-sztuce-krytycznej-po-roku-2000/D156Ynb2X.

[4] K. Gienas, Kontrowersyjność sztuki jako problem prawa autorskiego, ZNUJ. PPWI 2010, nr 2, s. 5-19.

[5] Ferenc-Szydełko E. [w:] Ustawa o prawie autorskim i prawach pokrewnych. Komentarz, red. E. Ferenc-Szydełko, Warszawa 2021 art. 1, nb. 9.

[6] Wyrok SN z 28.02.2023 r., II CSKP 245/22, LEX nr 3509939.

[7] This is because, according to the conceptualists, the work of art, understood by the audience as an object of aesthetic contemplation, obscures the meaning of the creator’s mental message. In fact, one of the important assumptions of the conceptualists is the rejection of the distinction between art and non-art, and between the creator and the viewer in the name of the slogan: “everyone can be an artist”; Słownik terminologiczny sztuk pięknych wydanie czwarte, Warszawa 2003, Red. Krystyna Kubalska-Sulkiewicz (koordynator), Monika Bielska-Łach, Anna Manteuffel-Szarota; http://www.przewodnikgdanski.pl/2014/wp-content/uploads/2013/12/S%C5%82ownik-terminologiczny-sztuk-pi%C4%99knych.pdf.

[8] ” L. O’Neil, One banana, what could it cost? $120,000 – if it’s art, „The Guardian”, https://www.theguardian.com/artanddesign/2019/dec/06/maurizio-cattelan-banana-duct-tape-comedian-art-basel-miami.

[9] J. Szita, Leaving paper and canvas outdoors, this creator lets nature take its artistic tool, Frame, https://frameweb.com/article/leaving-paper-and-canvas-outdoors-this-creator-lets-nature-take-its-artistic-toll.

[10] Ustawa z dnia 4 lutego 1994 r. o prawie autorskim i prawach pokrewnych (t.j. Dz. U. z 2022 r. poz. 2509).

[11]  R. M. Sarbiński [w:] Prawo autorskie i prawa pokrewne. Komentarz, red. W. Machała, Warszawa 2019, art. 1.

[12] K. Gienas, Kontrowersyjność sztuki jako problem prawa autorskiego, ZNUJ. PPWI 2010, nr 2, s. 5-19.

[13] Wyrok SN z 25.04.1973 r., I CR 91/73, OSNCP 1974/3, poz. 50.

[14] K. Gienas, Kontrowersyjność sztuki jako problem prawa autorskiego, ZNUJ. PPWI 2010, nr 2, s. 5-19.

[15] Wyrok SA w Łodzi z 30.07.2012 r., I ACa 483/12, OSAŁ 2014, nr 2, poz. 9.

[16] Wyrok SN z 31.12.1974 r., I CR 659/74, LEX nr 64198.

[17] Wyrok SN z 2.02.1968 r., I CR 649/67, OSNC 1968, nr 10, poz. 173.

[18] Wyrok SN z 31.12.1974 r., I CR 659/74, LEX nr 64198.

[19] Wyrok SN z 29.04.2016 r., I CSK 257/15, LEX nr 2029718.

[20] Wyrok SN z 10.07.2014 r., I CSK 539/13, LEX nr 1532942.

[21] Wyrok SN z 22.02.2019 r., III CSK 11/17, LEX nr 2623948.

[22] Wyrok SN z 9.08.2019 r., II CSK 7/18, LEX nr 2730923.

[23] Richard Prince, Back to the Garden. Zdjęcia za: J. Francis, On Appropriation: Cariou v. Prince and Measuring Contextual Transformation in Fair Use, Berkeley Technology Law Journal 2014, t. 29, s. 708–710, http://ssrn.com/abstract=2474464.

[24] It is worth noting that the U.S. has a “fair use” – a concept of copyright law used in countries of the common law system, which allows a flexible limitation of copyright. These rules are set forth in Section 107 of the Copyright Act of 1976. This section creates an exception to legal liability for copyright infringement in the case of “fair” use of works in the context of criticism, commentary, reporting on current events, teaching or research, more on fair use in https://skpipblog.pl/pl/fair-use-czyli-kiedy-w-swietle-prawa-amerykanskiego-mozemy-legalnie-korzystac-z-cudzej-tworczosci/#_ftn1

[25] https://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html

[26] Z. Pinkalski, Incydentalne wykorzystanie utworu chronionego prawem autorskim – analiza zakresu art. 29(2) ustawy o prawie autorskim i prawach pokrewnych, PPH 2016, nr 4, s. 20-24.