When Damien Hirst unveiled his diamond-encrusted skull, hands up all those who thought he’d sat up all night sticking the bling on himself. Behind many leading artists is a whole posse of lesser-known artisans, whose job it is to create without credit. In the first of two articles examining copyright in the art world, Arts Hub talks to leading media lawyer Mark Stephens – partner at Finers, Stephens, Innocent – and asks, “Whose copyright is it anyway?”
Mark Stephens is emphatic: Damien Hirst did not catch his own shark, slaughter his own meat or set his own diamonds in that blingin’ skull.
That out of the way, he goes on to explain exactly how copyright works – or doesn’t – when an artist agrees to work anonymously for another artist, foregoing any credit.
Copyright dates back to Roman times and is currently enshrined in law in the 1988 Copyright, Designs and Patents Act.
“Copyright comes into existence from the moment that the work is created,” explains Mark.
In literature, it comes into existence the moment something is written down; in art, the moment something is drawn, painted or sculpted – or in the case of photography, the minute the shutter release is pressed. Ideas are not subject to copyright, but if you execute those ideas – as we shall see later – they may well become subject to it.
So when does copyright pass from the commissioned artist who works anonymously to the artist commissioning them?
The real surprise for non-lawyers may be that it doesn’t, unless in writing
The point Mark was making when he emphasized that Hirst did not catch his own shark, butcher his own cow and set his own diamonds was that all the other people involved in these processes would own their own copyright in the works created.
“Copyright was invented by Act of Parliament and comes into existence by operation of law. It is a construct of statute,” says Mark.
He goes to explain that the current 1988 act sets out an arrangement of how copyright comes into existence – “and also when it comes into existence and so on and so forth.”
“Copyright is a very strange thing,” he adds: it comes into being automatically, but it is only one of two things in law that has to be passed in writing.
If there isn’t an agreement in writing saying that copyright has been passed from one individual to another, the originator of the work still owns the copyright.
Gentlemen’s agreements rather than formal contracts may operate in the shadowy world of artists who make anonymously for others, however.
Mark explains that such an agreement might be understood thus: “If I am a gentleman, I won’t sue you and I won’t actually tell anyone that I did the work.”
This, he says, can be legally binding on some occasions, but on others it cannot – it depends on the circumstances of the individual case because, of course, copyright has to be assigned in writing.
Thus an artist who commissions another to work anonymously and does so by verbal agreement may be leaving themselves wide open.
Mark draws up written contracts between artists and says there is no standard agreement – although some studios are “pretty well formulated about it.”
But the artists who work anonymously will have rights over their works – unless and until these have been assigned in writing to another party – and the individual circumstances have to be looked at very carefully “in order to determine what the true situation is”.
As well as the basic principal that the law requires any assignment of copyright be in writing, there is also a consideration of whether the work of an individual “qualifies for protection as an artistic work”.
“Basically, anything that employs the use of aesthetic skill and judgement is likely to attach copyright,” he says.
This means that reusing an original piece of photographic work, for example –
although it might be a straight copy – could, as a result of the transformative process of the art, be turned into a new copyright work.
Ideas, however, are not protected in copyright because “copyright is only the protection of the form of expression”.
In the case of Damien Hirst’s shark, Mark explains, Hirst got copyright because he did a number of preliminary sketches in his sketchbook, showed them to others and said, “this is what I’d like you to do”.
This means he came up with the original concept and executed it in his sketches.
In his explanation of current copyright law, Stealing Ideas, lawyer Henry Lydiate explains it thus:
“…originality of expression, not of ideas, is a prerequisite for having copyright protection for works of literature and visual art.”
Mark says that, had Hirst verbally instructed other artisans to catch a shark “and place it in a tank of formaldehyde and preserve it for him to present as a work of art of his own creation” – and they had delivered him the finished product as it is now exhibited in the Saatchi Gallery – in those circumstances Hirst would have had no copyright at all “because he would merely have had conveyed his ideas to a third party” and that party would have owned the copyright in the shark and any other sharks they might have caught and exhibited.
Mark also explains the difference between copyright and moral rights, which are concepts that fall into two categories: firstly, the right to be identified as the author or artistic creator of or artistic contributor to a piece of work; and secondly, the right not to have your work treated deleteriously.
To explain the first category, Mark cites the case of partnerships such as Jake and Dinos Chapman. In such a case, one member of the partnership could not claim authorship of a piece of work to the detriment of the other: both would have to admit their work was of joint authorship and they created it together.
In these circumstances, copyright is joint because they jointly conceived and created the work and executed it – and neither partner would be able to make changes without the consent of the other.
This is to do with the assertion of the right to be identified as the author, Mark explains.
But there is also the right not to have the work treated deleteriously. He says perhaps the best example of this concerns the black and white westerns of the director John Ford – which were “beautifully shot with lots of contrast”.
An attempt to colourise the films in the early days of the process resulted in a successful lawsuit in France by the director’s estate for a breach of his moral rights: it was deemed the outcome of colourisation – which some thought “brassy” – meant his work had been “deleteriously affected”.
And finally, what every arts worker fears most, the rights grab.
“A rights grab is when somebody says, ‘I want all rights’ and someone signs a document that says they can have all rights,” explains Mark.
He says this is usually done “in a situation where there is an inequality of an economic bargaining position”.
In the case of artists who surrender all their rights for a stipulated financial gain, the situation would amount to a rights grab.
“Appalling things happen,” says Mark.
So what is it that persuades an artist to work anonymously for another and put up and shut up?
In Part Two of our copyright feature, we talk to two artists who work undercover for some of the leading names in the art world today; and catch up with the project On Trust, in which five artists handed their original ideas to Neil Taylor, partner Harriet Murray and curator Claire Nichols of Campbell Works and trusted them to interpret them. Who owns the copyright of the completed works, though?
Sources:
fsilaw.com
saatchi-gallery.co.uk/virtual-tour-windows.htm
opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm
artquest.org.uk/artlaw/copyright/29491.htm
