Copyright & Originality

Derivative Works & Copyright

The year 2000 the Turner Prize stirred up controversy over the legal definition of originality. One of the four shortlisted artists Glenn Brown entered a piece called ‘Love of Shepherds 2000’ which looked very similar to the cover of a book which had been illustrated by Anthony Roberts, Double Star by Robert A Heinlein (1974).

The artist, Glenn Brown had trained at Goldsmiths College London and was known for using other artists’ works as a starting point for his own. The 2000 case was the second one which had been brought against him. The first case saw him being sued by the estate of Salvador Dali who believed that he had copied one of Dali’s original works without making it sufficiently his own.

Copyright law in the UK uses an originality test is to judge that a work is not significantly derived from another original work. This does not refer to the amount of the original work which is reproduced but the quality of the difference. The key examples of reproductions which are not deemed as original are photocopies or photographs of original works as the new image is simply made up of someone else’s work. When an artist uses another medium however, such as paint or sculpture to reproduce an original work, the question arises that as the artist is creating something using skill and labour, does this mean that their new work is original?

The test is carried out by someone who is not an expert in the art world like a member of the public. The two images are placed side by side, and the person needs to judge whether there is a visual connection between the pieces. If they judge that there is in fact a visual connection, the new work will fail the originality test. These means that not only will the new work not qualify for copyright protection, it will also be an infringement of the original work.

To members of the public who were not trained in the arts, Brown’s image was a clear copy of Roberts’ original work. Many art experts however disagreed and deemed that it was aesthetically original. The law however works in favour of visual originality which needs to be obvious enough that members of the public can see it as well as experts.

Artists have been using other artists work as starting points for their own for many centuries and in many cases, if put up to the originality test, many great works would be likely to fail. Andy Warhol for example, created reproductions of famous photographs of icons such as Elvis Presley and Marilyn Monroe which were visually very similar to the original works.

The artist Le Corbusier commented that ‘All artists steal; but the truly original artist repays a thousandfold’ which goes some way in describing how the art world judges originality. An artist may steal ideas but as long as what is created goes on to lead to artists being inspired by their new idea, the original theft may be forgiven. The law however sees this differently and thus rulings which are made may not always please the art world.

The Brown case was settled out of court with an agreement that Brown would add ‘After Anthony Roberts’ to the title and copyright of his piece.