Presentation given by David Langwallner for the event Visual Artists & The Law a VAI event in partnership with The Bar Council. David's presentation focused on issues around originality, parody and fair use. For full details see: http://visualartists.ie/education-2/current-programme/?ee=68 Copyright David Langwallner

1. Visual Artists
Artistic Copyright/ foundational
principles and select issues

2. Foundational Principles
• Copyrights and Related Rights Act 2000 Section 2/1 of the Act
states that:
• Artistic work includes a work of any of the following
descriptions, irrespective of their artistic quality:
• Photographs, paintings, drawings, diagrams, maps, charts, pl
ans, engravings etchings, lithographs, woodcuts, prints or
similar works, collages or sculptures (including any cost or
model made for the purposes of a sculpture).
• Works of architecture, being either buildings or models for
buildings and
• Works of artistic craftsmanship.
• open up the possibility that other works can be included
which do not fall within a conventional artistic copyright
classification.

3. Foundational Principles
• The second point to note is that such works are
protected irrespective of their artistic quality
• Interlogo AG v. Tyco Industries Inc the court indicated
that slavish copying will not meet the originality test. The
court also indicated that only the “visually significant”
aspects of an artistic work are copyright protected. In
relation to works in general that case also establishes
that “there must in addition be some element of material
alteration or embellishment which suffices to make the
totality of the work an original work.”
• the standard of originality for conventional works of
painting and drawing has been traditionally accepted as
low.

4. Harpbond, Bridgeman and Painer
• Merchandising v Harpbond – permanent, surface, insubstantial or de
minimas, bare idea, original.
• The traditional test for a photograph is that the standard of originality can be very
low and can be made out with the opportunistic hitting of a button.
• Bridgeman the United States court employed a different test of originality that of
Feistwhich requires a minimal level of creativity.
Advocate General’s Opinion in Case C-145/10, Painer v Standard VerlagsGmbH is also
relevant with respect to photographs.
Article 6 of the Term Directive. ….. a photograph is original if it is the photographer’s
own intellectual creation (reflecting his personality).
originality is ‘that a photographer “leaves his mark” on a photo’ by using the available
formative freedom. … sufficient formative freedom in determining ‘the angle, the
position and the facial expression of the person portrayed, the background, the
sharpness, and the light/lighting’

5. Lucas and Sculptures
Lucas: UK Supreme Court on 27th July 2011. The
court reasoned that the helmet was a mixture
of costume and prop and that its primary
purpose was utilitarian that is to say to
express an idea as part of a character
portrayal in the film thus the helmet lacked
the necessary quality of artistic creation to be
deemed a sculpture.
It was the Star Wars film not the sculpture that
was the work of art.

6. Collages and Artistic Craftsmanship
Collages:
• In Creation Records it was determined that the
distribution of a diverse group of objects and persons
even though arranged as a composition could not
constitute a collage.
• The court indicated that there had to be a fixing to some
physical medium and not just objects strew around.
Works of Artistic Craftsmanship
• real artistic quality or Artistic intent?
• a work of artistic craftsmanship, unconstrained by
functional considerations

7. Parody and Moral Rights
Parody in Art:
The question remains whether parody is a defence in this jurisdiction.
1: The US has protected parody and has relied inter alia on the constitutional
protection of freedom of expression. Parody is speech? In our culture also there
is protection of freedom of expression under Article 40.6 of the Constitution and
Article 10 of the European Court of Human Rights.
2: Fair dealing? Within the rubric of fair dealing there is criticism or review.
3: Finally, Clark argues that Parody could be made out by the defence of incidental
inclusion.
Moral Rights:
Finally mention should be made of the moral Rights and in particular the integrity
right under Section 109 of the Copyright and Related Rights Act 2000. This right
protects the author even if he or she has assigned the economic copyright to
“object to any distortion, mutilation or other modification of, or any derogatory
action in relation to the work.”
An interesting question is how this interacts with parody.

8. Practical Issues and Problems
• Copyright notice –endorse upon work on face margin
or bleed the copyright symbol, year of making, intials
and name
• Keep a Record email a copy to yourself at the date of
creation keep post office receipt leave envelope
unopened.
• Place records with third party you trust
• Register with US Copyright Office
• Reflect all agreements in writing especially to resolve
ownership or right to use issues in commissioned
works
• Contact The Irish Visual Rights Organisation!!