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Copyright Law and the Claims of Art

Anne Barron1Law Department, London School of Economics and Political Science

I. INTRODUCTION

It is often claimed that the institution of copyright is fundamentally oriented towardsthe promotion of the arts, and in particular towards the protection of artists fromunscrupulous pirates who— but for the copyright system—would exploit art forcommercial gain and leave artists themselves to ‘‘starve in their garrets’’. Indeed it isaround this claim, paradoxically, that those who lobby in the political arena forcopyright’s continuing expansion converge with many of copyright’s academic critics.It has become a commonplace of critical legal scholarship that copyright’s primarysocial function is to give juridical form to a ‘‘Romantic’’ aesthetic; that the key doctrinalfeatures of copyright law—especially the concept of authorship—have been cruciallyshaped by this aesthetic; and that the law of copyright is centrally oriented towardspromoting forms of cultural production that comply with the core values of theRomantic movement. Copyright’s proponents could readily agree with the critical legal

scholar’s representation of the copyright system. Romanticism, after all, is an ideologyin which artists are held up as uniquely sensitive souls, valiantly transcending the

prosaic routines and necessities of everyday life to express their genius in works of theimagination: it follows that a copyright system informed by Romanticism must be onewhich offers protection to these exceptional but fragile individuals. But whereas pro-copyright activists would flaunt this supposed fact as a reason for celebrating theinstitution, the project of much recent critical legal scholarship around copyright has been to draw attention to the problematic aesthetic judgements that are implicated withcopyright’s commitment to Romantic ideology, and the ethical concerns that arisetherefrom. In particular, copyright’s critics have been anxious to identify that realm of creative endeavour which is negated or denied by Romantic ideology, and to show howcopyright law reinforces the exclusive and exclusionary status of the individual

genius.In their 1996 article on ‘‘the ethical reaches of authorship’’, for example, Peter Jasziand Martha Woodmansee point out that ‘‘[w]ith its emphasis on originality and self-

1 The author is grateful for the support provided by an Advanced Research Award from the Arts andHumanities Research Board, which assisted towards the writing of this essay.

[2002] I.P.Q.: NO. 4 © SWEET & MAXWELL LTD AND CONTRIBUTORS 2002

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declaring creative genius, this [Romantic] notion of authorship has functioned tomarginalize or deny the work of many creative people . . . .’’ Consequently, ‘‘it shouldnot surprise us to learn that [copyright] law tends to reward certain producers and theircreative products while devaluing others’’.2 Although Jaszi and Woodmansee focus

primarily on the way in which the Romantic conception of authorship embedded incopyright law devalues the creativity of indigenous artists working in traditional formsand genres, their diagnosis of the limits of copyright could equally explain the law’sfailure to recognise many forms and genres of contemporary Western art:

‘‘no copyright can exist in a work produced as a true collective enterprise (ratherthan by one or more identifiable or anonymous ‘authors’); a work cannot becopyrighted unless it is ‘fixed’ [which excludes body art, land art and performanceart in general]; copyright does not extend to works that are not ‘original’ [which rulesout the art of the readymade and appropriation art in general]; and copyright doesnot protect ‘ basic’ components of cultural productions [and so radically limits theprotection awarded to minimalist and conceptual art]’’.3

That copyright law cannot accommodate whole swathes of contemporary artisticproduction under its protective umbrella is clear. What is less clear is how and why thisstate of affairs could have come about—especially given that copyright tends to be justified as an instrument for encouraging the progress of the arts—and whetheranything can or should be done about it. This article primarily sets out to address thefirst of these questions. It aims to contest the notion that Romanticism has beenresponsible for the narrow (from the contemporary artist’s perspective) range of subjectmatter protected by copyright law; and to offer an alternative framework throughwhich to understand the relationship between copyright and the practice and theory of art. Its broad premise is that copyright law’s debt to Romanticism has been vastlyoverstated.4 In particular, it will be argued that the ‘‘Romantic determinism’’ thatunderlies so much critical commentary about copyright has been sustained by anexcessive focus on the category of authorship in copyright law—the ‘‘subject’’ of copyright law—and a tendency to overlook the ways in which the protected work—the‘‘object’’ of copyright law—is defined for legal purposes.

I argue that it is the work, rather than the author, that has constituted the key site of intersection between copyright, art and art theory, because it is the manner in whichcopyright law defines the work, rather than the manner in which it defines the author,that exposes the af finities between the discourses of copyright law and aesthetic theory

2 Peter Jaszi and Martha Woodmansee, ‘‘The Ethical Reaches of Authorship’’ (1996) 95 South AtlanticQuarterly, 947–977, 948.

3 ibid.4 This is not the fault of any particular copyright scholar, and certainly not of Jaszi and Woodmansee,

who separately and together have provided highly nuanced and sophisticated accounts of copyrightlaw’s connection with the aesthetic domain: see especially Peter Jaszi, ‘‘Towards a theory of copyright:the metamorphosis of ‘authorship’ ’’ (1991) Duke L. Jnl. 445; Martha Woodmansee, The Author, Art andthe Market (New York, Columbia University Press, 1994), especially Chap. 2. I refer more generally toan implicit and often unarticulated assumption that informs much critical scholarship on copyrightand the arts: that the Romantic conception of authorship is to blame for this troubled and unsat-isfactory relationship.

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most vividly. Yet when the focus turns to the work, it is if anything a Modernist—nota Romantic—aesthetic that appears to be reflected in the law. It has not gone unre-marked that copyright law assumes its object to be much the same kind of entity thatmodernist criticism across all the arts assumes its object to be: stable, fixed, closed, self-

contained, and autonomous of its context and audience.5

While reiterating this pointhere, my main concern is to explore the way in which copyright law also fragments thisobject into an elaborate list of species or types, and to identify parallels between thistendency and a similar—also Modernist—tendency in thinking about the visual arts.The first section of the U.K. Copyright, Designs and Patents Act6 provides as fol-lows:

‘‘s.1(1) Copyright is a property right which . . . subsists in the following descriptionsof work:

(a) original literary, dramatic, musical and artistic works(b) sound recordings, films, broadcasts or cable programmes, and(c) the typographical arrangement of published editions.’’

Section 4 of the Act goes on to elaborate on the legal meaning of the category ‘‘artisticwork’’ in the following way:

s.4(1) . . . ‘‘artistic work’’ means—(a) a graphic work, photograph, sculpture or collage, irrespective of artistic

quality,(b) a work of architecture being a building or a model for a building, or(c) a work of artistic craftsmanship.

(2) . . .‘‘ building’’ includes any fixed structure, and a part of a building or fixed structure;‘‘graphic work’’ includes—

(a) any painting, drawing, diagram, map, chart or plan, and

(b) any engraving, etching, lithograph, woodcut or similar work;‘‘photograph’’ means a recording of light or other radiation on any medium onwhich an image is produced or from which an image may by any means beproduced, and which is not part of a film;‘‘sculpture’’ includes a cast or model made for the purposes of sculpture.

I argue that there are clear af finities between the way U.K. copyright law dissects thegenus ‘‘work’’ for the purpose of delineating the possible objects of a property right, anda tradition of thinking about the arts (much older and more entrenched than Romanti-cism) in which the separate arts are distinguished from each other, and the essential

5 See generally on modernist criticism, and the postmodernist critique of modernism, StephenConnor, Postmodernist Culture (Oxford, Blackwell) (2nd ed., 1997). On the af finities between the legalconcept of the copyright work and the ‘‘reified aesthetic object’’ presupposed by literary criticism seeMark Rose, ‘‘The Author as Proprietor: Donaldson v. Beckett and the genealogy of modern authorship’’(1988) 23 Representations 51. On its af finities with modernist conceptions of the work, see RobertRotstein, ‘‘Beyond Metaphor: Copyright Infringement and the Fiction of the Work’’ (1993) 68 Chicago-Kent Law Review 725.

6 Copyright Designs and Patents Act 1988 (hereinafter CDPA).

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components of each art carefully dissected, for the purpose of identifying their aestheticlimits and possibilities. This tradition of aesthetic thought stretches from Aristotle toAlberti, through the work of Armenini to the rise of the Academies of Art in theseventeenth century; it emerges with renewed vigour in Jean-Baptiste Dubos’ Critical

Reflections on Poetry and Painting (1719) and arguably reaches its apogee in GottholdEphraim Lessing’s Laocoon (1767). Of course, the significance of developments ineighteenth century aesthetics to the development of copyright law’s ‘‘Romantic’’predisposition is often stressed by proponents of Romantic determinism: the eighteenthcentury developments that paved the way for the Romantic movement were theelaboration of a unified conception of ‘‘Art’’ in general as a unique and special arena of human activity, and the emergence of a distinct philosophical discourse which couldprovide an explanation of the nature and value of ‘‘Art’’. Yet the more or lesscontemporaneous efforts (by Lessing, Mendelssohn, Herder and others) to classify theparticular arts, and to demarcate the boundaries between them at the level of theirdistinctive modalities of expression, have been ignored. Broadly, these efforts wereoriented towards building an understanding of what is specific to each art: an accountof the differences between the types of ‘‘sign’’ each art employs (‘‘natural’’ or ‘‘arbi-trary’’); the sensory apparatus involved in the perception of these signs (e.g. sight,touch, hearing); and whether they are perceived in space or in time. Nor is this traditionof purely historical interest, for it reemerges with a vengeance in the Modernist artcriticism and theory of the 1940s–1960s, and specifically in the work of ClementGreenberg and Michael Fried. In his classic essay ‘‘Art and Objecthood’’,7 for example,Fried argues that the Modernist arts are ‘‘explicitly concerned with the conventions thatconstitute their respective essences’’.8 Further, ‘‘[t]he concepts of quality and valueand . . . the concept of art itself are meaningful, or wholly meaningful, only within theindividual arts. What lies between the arts is theatre’’.9 Fried proceeds to argue that theModernist sensibility finds theatricality ‘‘intolerable,’’ mainly because of this incapacityor refusal to be bounded by the divisions between the arts; but partly also because atheatrical work exists for, and is incomplete without, an audience, and because thesense that it addresses is above all else the sense of time. Modernist art, on the otherhand, defeats time: it is wholly manifest immediately and at every moment.

It is precisely the status of these distinctions, hierarchies and exclusions that is atstake in much contemporary art practice and criticism. As Douglas Crimp pointed outin 1979, it was theatricality, and with it temporality, that came to characterise much of the art that followed minimalism in the 1970’s. ‘‘The mode that was thus to becomeexemplary during the seventies was performance—and not only that narrowly definedactivity called performance art, but all those works that were constituted in a situationand for a duration by the artist or the spectator or both together’’.10 This can be seen aspart of a broader tendency towards the production of generic art, that is, ‘‘visual’’ artthat has severed its ties with the specific crafts and traditions of either painting or

7 Michael Fried, ‘‘Art and Objecthood’’ in G. Battcock (ed.), Minimal Art: A Critical Anthology (NewYork, E. P. Dutton, 1968), pp. 116–147.

8 ibid. p. 142.9 ibid.10 Douglas Crimp, ‘‘Pictures’’ in B. Wallis (ed.) Art After Modernism (New York), New Museum of

Contemporary Art, 1984) pp. 175–188, at 176–177.

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sculpture. This art has taken many forms, including those referred to by Crimp butalso—in the 1980’s and since—practices involving mixed media, video, and readymadeobjects. These post-Modernist art practices have not only found themselves in con flictwith the norms of Modernist art criticism: they are not easily accommodated, either, by

the norms of copyright law, because the af fi

nities between copyright’s classi

ficatoryschemas and the categories that sustain Modernist critical conventions are striking.

Briefly, what Modernist art theory shares with copyright law is an assumption that allthe arts can be confined within a closed list of mutually exclusive expressive genres,each with an essential character; and that norms for each of these arts (whetheraesthetic or proprietary) can somehow be derived from the self-contained technicalconditions and demands of their production. What is common to both, in other words,is an attentiveness to the specific nature of each artistic medium—the methods,materials and means deployed in the production of each art—as a basis for judgementsabout the status of particular instances of each art. One of the implications of thisapproach as a matter of law is that the components of the category of ‘‘artisticworks’’—paintings, sculpture, works of architecture, photographs and so forth—areseparately listed and defined, and as the statutory formulation reproduced aboveshows, ‘‘artistic work’’ has no meaning in law beyond this: it is simply the nameapplied to each element in this cluster of separately enumerated entities. It is, I argue, because of its taxonomic approach to the characterisation of its protected objects—thatis, because of its commitment to the genus, as opposed to the genius11—that copyrightlaw is now so frequently confounded by contemporary practices in the visual arts thatexceed the categories of painting and sculpture. From the perspective of copyright law,the problem with these practices is that they do not conform to any of the speciesaccommodated by the legal genus of ‘‘artistic work’’. If they are characterised as art bythe art world, this is not because they can be described as paintings or sculptures, butsimply because their making or doing is accompanied by the claim ‘‘this is art’’ andcalls for an aesthetic judgement on the part of the viewer. Yet copyright law in the U.K.has no category of ‘‘art’’, and it does not demand of the objects it protects that they elicitan aesthetic response. Copyright law therefore cannot recognise whole swathes of contemporary practice in the visual arts as having any claim to legal protection assuch.

II THE GENUS AND THE COPYRIGHT

One of the most remarkable features of copyright’s historical development has been thepiecemeal and particularistic manner in which its reach has extended over time toaccommodate new kinds of intellectual entity. This is especially evident in relation tothe visual arts. Beginning in 1735, a series of legislative measures—their form roughly

modelled on that of the first modern copyright statute of 1710 (which dealt with ‘‘ books

11 cf. Martha Woodmansee, ‘‘Genius and the Copyright: economic and legal conditions of theemergence of the ‘Author’ ’’ in The Author, Art and the Market (op cit. note 4), Chap. 2.



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and other writings’’)—awarded copyright protection to engravings (1735–1777); sculp-tures (1798–1814); and paintings, photographs and drawings (1862). These measureswere codified and extended by the 1911 Copyright Act, which added works of architecture and works of artistic craftsmanship to the list. All of the entities protected by

these early statutes continue to be legally recognised in the current U.K. copyrightlegislation as copyright works: ‘‘engravings’’, ‘‘sculptures’’, ‘‘paintings’’, ‘‘photographs’’and ‘‘drawings’’ are all listed in section 4 of the Copyright, Designs and Patents Act,together with ‘‘collages’’, as belonging in the category of ‘‘artistic works’’.

These legal developments have evidently not been motivated by systematic thinkingabout the arts in general, or the visual arts in particular: new categories of protectedsubject matter have not been derived by deduction from a broad concept of ‘‘Art’’, oreven ‘‘Visual Art’’, but have been added incrementally by way of analogy with whathad already received the protection of the law. Even when the term ‘‘Art’’ has beenused in legal discourse, as in the title of the 1862 Act (the ‘‘Fine Arts Copyright Act’’),it has exerted no independent force as a legal concept. Under this Act, no less thanunder the other legislation referred to above, the only issue of any relevance to thestatus of a given entity as a copyright work has been whether the entity belongs withina list of separately identified classes of protected subject matter: in the case of the 1862Act itself, the list included paintings, drawings and photographs.12 The 1911 Actcodified the many copyright statutes that by then existed, and organised the manyclasses of protected object into four groups—literary, dramatic, musical and artisticworks—which continue to be recognised in the current law. But these four groups werenot (and are not) themselves systematised by reference to a broader legal concept of ‘‘Art’’; and the group of works designated ‘‘artistic’’ was (and is) simply a list. Although judicial interpretation of what is contemplated by this list seems to have establishedthat artistic works will invariably be ‘‘visually significant’’13 (an artistic work, therefore,is generally something that can be appreciated by the eye), the concept of ‘‘artisticwork’’ has no enforceable legal meaning: it is simply the name applied to each elementin a table which includes graphic works,14 photographs, sculptures and collages. Of course this still leaves open the question of how each of these classes of entity is to bedefined, and here the legislation has remained largely silent: its most importantcontribution is to state that most are protected ‘‘irrespective of artistic quality’’.15

Beyond this, it is up to the courts—whose task it is to interpret the statutory sche-me—to tease out what is meant by each of these elements. Faced with the task of determining what is accommodated by a particular term within the ‘‘artistic work’’category, the approach of the courts, on the whole, has been to focus on the physicalembodiments through which visual representations of that type are ‘‘normally’’ made

12 Fine Arts Copyright Act 1862, s.1.13 Interlego v. Tyco [1988] 3 All E.R. 949; Anacon Corporation Ltd v. Environmental Research Technology

Ltd, [1994] F.S.R. 659.14 Under the CDPA s.4(2), the category of ‘‘graphic works’’ includes paintings, drawings, diagrams,

maps, charts and plans; and engravings, etchings, lithographs, woodcuts or similar works.15 CDPA s.4(1)(a). The exception here, of course, is the ‘‘work of artistic craftsmanship’’ under

s.4(1)(c): see George Hensher v. Restawile Upholstery, [1976] A.C. 64. It has been suggested that ‘‘works of architecture, like the subject matter falling within s.4(1)(a), need not possess any ‘fine art’ attribute inorder to qualify’’ (Hugh Laddie, Peter Prescott, Mary Vitoria, Adrian Speck and Lindsay Lane, The Modern Law of Copyright and Designs (3rd ed., Butterworths, London, 2000) p. 194.

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manifest, and upon the technical processes which ‘‘normally’’ (i.e. as a matter of ordinary common sense) yield physical items corresponding to the entities mentionedin section 4. In other words, their judgements have proceeded from the aestheticallyneutral features of entities assigned by ordinary language use to the classi fications

within the category, with no reference to whether these entities can claim the status of ‘‘art’’.As far as the artist is concerned, two consequences flow from this way of thinking

about the objects of copyright. First, it has resulted in their being dis-aggregated into aseries of classifications and sub-classifications that appear highly anomalous from theperspective of the contemporary artist, whose practice can no longer be confined by thecategories of painting, drawing, sculpture, collage, engraving, architecture or evenphotography. There is no specific sub-classification of the ‘‘artistic work’’ category thatcould accommodate installation art, video art,16 environmental art, body art, perform-ance art, mixed media works or most conceptual art; nor is there a general overarchingcategory of ‘‘art’’ that could accommodate the products of these practices instead. Thisowes far less to deliberate aesthetic discrimination than to the peculiarities of copy-right’s legislative history: in particular, the manner in which techniques of legislativedrafting have been deployed to manage the pressure exerted on the statutory frame-work of copyright law by the interest groups who have successfully pressed theirclaims in the political arena. Yet the effect of this taxonomic approach to defining theobjects of copyright is certainly discriminatory, simply because the narrowness of thelaw’s classifications causes it to fail to reflect the diversity of contemporary art. Second,the manner in which the privileged classifications of painting, drawing, sculpture,collage, engraving, architecture and photography are defined as a matter of copyrightlaw has little to do with how contemporary practitioners of these arts would definetheir own practice. This is because the law, as shall be demonstrated below, defineseach of these types of artistic work in terms of the differences between their artefactualconditions and the modes by which they are perceived by the senses: differences whichare supposed to be aesthetically neutral.

This myopic—as far as contemporary art is concerned—way of seeing the ‘‘artisticwork’’ has nothing to do with Romanticism, although it is certainly analogous to othertendencies in eighteenth century aesthetics. Historians of aesthetics generally pinpointthe eighteenth century as the site of a convergence of two very different attitudes toart.17 One is a universalising trend towards imagining art, with a capital A, as a‘‘system’’ of the five major arts—painting, sculpture, architecture, music andpoetry—unified as a distinct arena of human activity under common principlessupplied by the philosophical discourse of aesthetics. This approach produces thefollowing kind of question: ‘‘what is it that a poem and a picture, a musical piece anda statue have in common, although the media in which they are cast, and the materialnature of the products, differ so widely?’’ Romanticism, of course, answers thisquestion with a general theory of artistic creation. The second attitude, however, is

16 The CDPA s.5B protects ‘‘a recording on any medium from which a moving image may by anymeans be reproduced’’— but as a ‘‘film’’, not as an artistic work.

17 Paul Kristeller, ‘‘The Modern System of the Arts’’ in Renaissance Thought and the Arts (PrincetonUniversity Press, Princeton, 1990) pp. 163–227; Mosche Barasch, Theories of Art: from Wickelmann toBaudelaire (Routledge, London, 2000), Chap. 3.



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preoccupied with how these kinds of work differ from each other: it is a particularisingattitude, oriented towards demarcating the boundaries between the arts and identifyingwhat is unique to each of them. Variants of this tendency can be traced back toantiquity: Aristotle’s Poetics, for example, distinguished poetry from painting in terms

of the media characteristic of these two arts (words, melody and rhythm as opposed tocolour and drawing).18 In a sense, the workshop literature of medieval Europe perpetu-ated this approach, though in an unreflective manner. This literature was comprised of ‘‘how to’’ manuals by and for practising artists, characterised by their lack of systematicarrangement and their omission of any reference to the aim or function of the artsreferred to, or to the values they embodied or served.19 The technical orientation of these treatises necessarily led them to focus on specific arts and the materials andmeans involved in making specific examples of each art. Thus their authors ‘‘strictlylimited the scope of the subject matter they explored; they thought of, and discussed,only the conditions and processes of the production of a [specific] work of art . . . . Theonly question the medieval artist asked . . . was: How is it done?’’20 During theRenaissance, humanist scholars speculated at a higher level of generality about thecomponents of each of the visual arts (especially painting, sculpture and architecture) but even so, the paragone (comparison) literature of the time consolidated the tendencyto focus on what distinguished these arts from each other, rather than on what theyshared: ‘‘the specific nature of each medium, and . . . the particular processes required by working in each of them’’.21 This particularising tendency exerted a powerful, if unacknowledged, influence on the thought of eighteenth century aestheticians such asLessing and Mendelssohn. And these early reflections on the ‘‘specific nature of eachmedium’’ crystallised a set of ideas about the visual arts that are echoed in the‘‘medium-specific Modernism’’ developed by Clement Greenberg and his followers inthe mid-twentieth century.

Although this attentiveness to the particularities of artistic methods, means andmaterials has received no attention at all from copyright scholars, it is here, I argue, thatthe most interesting parallels between copyright law and aesthetic theory are to befound. For in eschewing the category of ‘‘Art’’ and focusing instead on defininginstances of ‘‘artistic work’’ such as painting and sculpture in purely technical terms,legal discourse replays—in its own key—one of the oldest themes in the history of arttheory. The implications of this paradox have only become obvious and important inthe wake of the turn from specific to generic art: it is because copyright law assumesthat ‘‘Art’’ manifests itself only in a determinate array of species such as painting andsculpture that it cannot accommodate any artistic gesture that is not realised in one orother of these forms. Thus it is precisely in its blindness to ‘‘Art’’, I would argue, thatcopyright law’s discriminatory and exclusionary potential resides. Before proceedingto elaborate on this argument, however, it is necessary to confront the ‘‘Romanticdeterminism’’ thesis outlined in the Introduction, because if true, this thesis directlycontradicts the argument I want to advance in this essay. In the next section, then, I will

18 Monroe C. Beardsley, Aesthetics from Classical Greece to the Present, (Macmillan, New York, 1966)p. 55.

19 Moshe Barasch, Theories of Art: from Plato to Wickelmann (Routledge London, 2000), p. 74.20 ibid. p. 86–87.21 ibid., p. 168.

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trace the emergence of the universalising attitude to ‘‘Art’’, show how the Romanticmovement absorbed this attitude, and analyse the claim that copyright law, in its turn,reflects a Romantic aesthetic.

The emergence of ‘‘Art’’As Kristeller has convincingly shown, the universalising attitude emerges for the firsttime only in the eighteenth century.22 Until the early modern period, the term ‘‘art’’ wasapplied to all kinds of human activities which we would now call crafts or sciences. Itdesignated any techne or skill which could be learned: ‘‘a skill in making products, askill in practical performance, and a skill in theoretical activities of the mind ’’.23 Thefirst of these meanings is the closest to the contemporary understanding of art asyielding ‘‘works’’ of art, but before the emergence of a unified concept of fine art in theeighteenth century, ‘‘the class of works of art included not just works imbued with‘aesthetic’ value . . . but all utilitarian products of skilled or mechanical labour. Worksof art were not sharply distinguished . . . from craft-products’’.24 In the Middle Ages,for example, architecture, sculpture and painting tended to be categorised, along with

other crafts, as ‘‘mechanical’’ arts in contradistinction to the ‘‘liberal’’ arts; music wasconsidered a liberal art in the same company as mathematics and allied disciplines; andpoetry, also a liberal art, was closely linked to grammar and rhetoric.25 Not even theRenaissance produced a formulation of a system of the fine arts or a comprehensivetheory of aesthetics, although it brought many important changes in the social positionof art and the artist.26 The visual arts of painting, sculpture and architecture began forthe first time to be theorised as a separate group and distinguished from the craftsduring this period,27 but the attempt to dignify them with a special status sometimesproceeded by analogising them to poetry and music, and sometimes by representingthem as sciences, which suggests that there was as yet no category of ‘‘fine art’’ that wasrecognised as clearly distinct from the sciences. Kristeller identifies the publication of Batteaux’ Les Beaux Arts Reduit à un Mˆ eme Principe (‘‘the fine arts reduced to the same

principle’’) in 1746 as a key moment in the crystallisation of the category: the fine arts(all of which are said to have pleasure for their end) are here rendered as music, poetry,painting, sculpture and the dance; and the principle that is common to them all is saidto be the imitation of beautiful nature.28 The Encyclop´ edie ou Dictionnaire Raison´ e desSciences, des Arts et des Metiers, published in Paris in 1751, put the finishing touches toBatteaux’ system by including architecture among the imitative arts,29 and by 1762,British writers such as Lord Kames (Henry Home), the Scottish judge and aesthetician,were taking the ‘‘system’’ of the fine arts for granted: the latter lists poetry, painting,

22 P. Kristeller, op. cit. note 17.23 Lydia Goehr, The Imaginary Museum of Musical Works (Clarendon, Oxford, 1992) p. 149.24 ibid., p. 150.25 P. Kristeller, op. cit., note 17, p. 175.26 ibid. p. 178; M. Barasch, op. cit. note 19, Chap. 3.27 P. Kristeller, op. cit., note 17, p. 182. This happened initially in sixteenth century Italy, and

somewhat later in the rest of Europe (ibid.).28 ibid., p. 199–200.29 ibid., p. 202.



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sculpture, music, gardening and architecture as ‘‘fine arts’’.30 These French and Britishconceptions of the arts, however, were motivated more by critical than by philosophicalconcerns, and it was in Germany that the field of philosophical aesthetics took shapefor the first time. Kant’s Critique of Judgement (1790) is of such fundamental importance

to the history of aesthetics precisely because it incorporated this new tendency totheorise about the ‘‘system’’ of the arts into the most sustained philosophical treatmentyet of the concept of beauty. At the same time, his analysis of beauty broke with theearlier association of beauty with imitation or mimesis: it paved the way for theRomantic conception of art as an expression of subjective feeling or imagination, andof value in art as linked with the intensity of the artist’s feeling and the quality of hisor her imagination.31

The exaltation of the artist’s creative nature became evident first—from the1760’s—in literary theory and practice, and migrated from there to embrace the visualarts. This is significant, because as Barasch has pointed out in his treatment of thewritings of a leading Romantic art theorist, Wilhelm Heinrich Wackenroder, there is atendency in the literature of the movement to regard the work as merely a conduit tothe artist’s ‘‘soul’’ and so to overlook its specificity:

‘‘What the spectator looks for, and indeed finds, in a painting are not the material orformal components of the painting itself; the true subject of the spectator’s vision, inWackenroder’s view, is the personality of the artist. The work of art, it turns out, isonly a stepping stone to the artist, a medium through which we can meet him. ’’32

The desirability of ‘‘meeting the artist’’ followed in part from the Romantic conceptionof genius as connoting a kind of spiritual superiority which was connected especiallywith artistic activity. The concept of genius already had a long history in art theory bythe late eighteenth century, however. Barasch sees it at work in art theoretical writingsof the High Renaissance (notably Zuccari’s The Idea of Painting, Sculpture and Archi-tecture, published in 160733), where it is sometimes invoked to question the receivedview that painting or sculpture is best effected by following institutionalised traditionsand prescribed rules. The new emphasis placed on genius in the second half of theeighteenth century can thus be seen as the movement of an old, but peripheral, themein art-theoretical writing to centre-stage. Now the artist is no longer regarded as onewho must be guided by rules and inherited forms or styles in producing works of art, but is unequivocally seen as one who is equipped with an exceptional endowment (and

30 Henry Home, Elements of Criticism, quoted in P. Kristeller, op. cit., note 17, p. 211.31 On the philosophical tradition of German Romanticism generally, see Andrew Bowie, Aesthetics

and Subjectivity: from Kant to Nietzsche (Manchester University Press, Manchester, 1990) and FrederickC. Beiser, The Fate of Reason: German Philosophy from Kant to Fichte (Cambridge University Press,Cambridge, 1987). On the Romantic movement in the practice, theory and criticism of the arts(especially in literature), see generally Meyer H. Abrams, The Mirror and the Lamp (Oxford UniversityPress, Oxford, 1953). For an account of the links between the German Romantic philosophy and theRomantic movement, see D. Simpson, ‘‘Introduction’’ in David Simpson (ed.) The Origins of ModernCritical Thought (Cambridge University Press, Cambridge, 1988).

32 Moshe Barasch, Theories of Art: from Wickelmann to Baudelaire op. cit., note 17, p. 295–6.33 Barasch, op. cit. note 19, p. 295 ff.

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not merely an exceptional skill or technique), which manifests itself in breaking rules,departing from traditions, effecting breakthroughs: that is, in originality.

Other key terms in the discourse of Romantic art theory—imagination, inspiration,expression—also echoed elements of older traditions of theorising about painting and

sculpture, but as Osborne points out, like genius, these terms‘‘

took on a newsignificance in the course of [the Romantic] movement and so revolutionised the theoryof art’’.34 Imagination had previously signified the capacity to memorise visual impres-sions gleaned from experience and retain these in the mind as resources for later use,or the capacity to perfect the appearances encountered in nature by reference to theIdeal forms that arrive in the artist’s mind through reflection and introspection; now itis the inventive or productive imagination—the ability to conjure up images whichhave no counterpart in nature and which therefore transcend the limits of experi-ence—that is emphasised. The wellspring of original creative endeavour, inspiration,ceases to be seen as the effect of a (divine) force acting upon the artist from outside, andis conceived of as having its source in the unconscious part of his or her own being35:thus the real subject of every work of art is the artist, and the compulsion to expressoneself comes to mark out the artistic sensibility. Consequently, the meaning of ‘‘expression’’ also shifts: whereas for the Classical tradition it referred to the facial or bodily attitudes by which the emotions of the figures depicted in painting or sculptureare signified, now it means the process by which the artist’s own feeling is conveyedthrough the art work. The central importance now given to these ideas in conjunctionwith one another ‘‘constituted a new attitude towards art with new concepts of itsfunctions and new standards of assessment’’.36 The art work was now supposed to bethe medium through which less sensitive souls could commune with the artist’ssuperior personality. It followed that it was acceptable to appraise the work of art byreference to the degree and complexity of imaginative invention contained within it, orthe intensity of the emotions conveyed by it: ‘‘Art should communicate shades andcolours of feelings not otherwise accessible or enable the observer to experiencestandard emotions with fresh insight or vividness.’’37

‘‘Art’’ and Copyright

The law shows no sign of having been led by these developments in selecting outcategories of intellectual creation for the very different kind of status entailed bycopyright protection. As has been shown, copyright law knows no concept of art assuch. And although the law now protects a list of art forms that includes all thecomponents of the ‘‘system of the arts’’, the history of its progress in this regardexemplifies a completely different evolutionary logic to that described by Kristeller.True to its title, the Fine Arts Copyright Act 1862 extended the protection of copyrightlaw for the first time to paintings, and so added painting to a list of art forms—notably

34 Harold Osborne, Aesthetics and Art Theory (Longmans, London, 1968), p. 132.35 ibid. p. 139.36 ibid. p. 132. For an extended analysis of these ideas in relation to the leading painters working in

the period between 1800 and 1850, see William Vaughan, Romanticism and Art (Thames and Hudson,London, 1994).

37 Osborne, op. cit. note 34, p. 135.



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sculpture—whose products were already protected by other statutes. But this listincluded art forms that were excluded from the ‘‘system of the arts’’ (e.g. engraving andphotography); excluded art forms that were included in the system (notably archi-tecture); and elided two of the (aesthetically) favoured art forms —music and poetry—

under the general category of the‘‘ book

’’.38

Whatever the logic underlying the arrayof protected subject matter in the mid-nineteenth century, then, it was not the same asthat underpinning the emergence of the system of the arts and the concept of Art ingeneral at the end of the eighteenth. Even when in 1911 the list was reorganised toproduce the four groups of protected works mentioned above—literary, dramatic,musical and artistic works—the new taxonomy bore only a superficial resemblance tothe aesthetic categorisation of the five major art forms: architecture was included forthe first time in the ‘‘artistic works’’ category, but took its place alongside such prosaicitems as diagrams and charts, while poetry was not explicitly mentioned but (as a formof literary work) was implicitly placed in the same category as examination papers andrailway timetables. The position today is broadly the same. More fundamentally,criteria of artistic merit have on the whole been very deliberately excluded fromplaying any role in determining whether an entity falling into one of the designatedcategories qualifies for copyright protection.39 To this extent, the proposition thatcopyright law is the legal expression of a particular aesthetic theory is simply notsustainable.

This can be illustrated by reference to copyright law’s own conceptions of ‘‘author-ship’’ and ‘‘originality’’. Authorship in law, first of all, is simply the description of acausal relationship between a human intentionality and a work: the Copyright Actstates nothing more than that ‘‘ ‘author’, in relation to a work, means the person whocreates it.’’40 The work, in turn, need not be of any particular nature or quality in orderto gain protection: it must simply be attributable to some determinate person. It followsthat the originator of the protected work need in no way be a ‘‘genius’’ in the Romanticsense in order to acquire the status of author for the purpose of copyright law. True,some works of authorship, including artistic works, must be original if they are toobtain the protection of copyright, but the legal concept of originality has little incommon with the Romantic notion of originality. A work is original in law if it can beshown that its author has expended some more than minimal conscious effort in itsproduction: it is quite clear that imaginative effort is not required. And although therequirement of originality translates into the rule that a work must not be copied if itis to gain the protection of copyright,41 this rule cannot meaningfully be equated withRomanticism’s antipathy to imitation. Because the rule excludes only slavish copies,copies which exemplify no ‘‘material alteration or embellishment’’ of the work of another,42 the criterion of originality is no bar to the protection of a work whichincorporates pre-existing material and is, to that extent, derivative. For all of these

38 The Copyright Act 1842, which awarded copyright to ‘‘ books’’, defined ‘‘ book’’ in s.2 to include‘‘every. . . sheet of music’’.

39 See note 15 above.40 CDPA, s.9.41 Peterson J. in University of London Press Ltd v. University Tutorial Press Ltd [1916] 2 Ch. 601, at

608–609.42 Interlego v. Tyco op cit. note 13.

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reasons, it is impossible to see in the legal concepts of ‘‘author’’ and ‘‘originality’’ aclear reflection of the ideas that were characteristic of the Romantic movement. 43

One further legal concept deserves some attention at this point, however, and this isthe concept of the ‘‘work’’ itself. For although copyright law avoids defining its objects in

terms of an overarching conception of Art, it does invoke an overarching concept of thework.44 What then is a work in law? The concept is nowhere defined in the legislation, but case law shows that certain features are consistently predicated of every entity that isdeemed by the courts to be a copyright work, quite apart from and prior to the questionof whether it qualifies as a particular kind of work (e.g. an artistic work).45 First, there can be no copyright work without some human author who can be said to originate it. Togain the protection of copyright law, an entity must be capable of being conceived of asthe result of some (more than minimal) human intervention in the ‘‘real’’, whether or notthis intervention is mediated by mechanical or other technical means. Thus a landscapeor scene cannot itself constitute a copyright work, although the image yielded by aphotograph or painting of the same landscape can. Second, a copyright work must becapable of certain definition. There are two means, in turn, by which copyright lawensures that works will have clearly delineated boundaries: through the principle thatcopyright extends only to the expressive form that ideas assume and not to ideas assuch46; and by requiring that works must be manifest to the senses in some way, either because they are recorded, or fixed, in some material embodiment,47 or because theprocess of their creation makes this inevitable.48 In other words, copyright law demands both that a concrete expressive form be conceptually separable from an ‘‘underlying’’realm of general ideas and so attributable to some determinate author, and that this(intangible) expressive form be perceptible to the senses.

There is no doubt that this way of thinking about the ‘‘object’’ of copyright operatesnow to deny or radically curtail protection for many contemporary practices in thevisual arts, and a few examples will suf fice to illustrate this point. The apparentlyuncontroversial principle that every protected work must be attributable to the creativeefforts of some determinate author is of major significance here. It cannot comprehendthe art of the readymade, which of course denies the necessity of the artist’s hand; norcan it accommodate the site-specific art work—much less one that depends for its

43 See further, Mark Lemley, ‘‘Romantic Authorship and the Rhetoric of Property’’ (1997) Texas L.Rev. 873.

44 CDPA, s.1.45 The features referred to here are in all essential respects the same as those alighted upon by the

judges and commentators who debated the question of ‘‘literary property’’ in the eighteenth century.I draw attention to them here because they have tended to be obscured by the exclusive concern withauthorship that tends to accompany the focus on Romanticism; and because historically theirelaboration was both highly controversial and absolutely fundamental to the maturation of the legalinstitution of copyright. For a detailed account of the literary property debate, see M. Rose, op. cit. note5; Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (CambridgeUniversity Press, Cambridge, 1999), Chap. 1.

46 This principle is not expressly included in the CDPA but has been reiterated on many occasionsin cases decided under this and earlier copyright statutes. For a recent application of the principle toartistic works under the CDPA s.4, see the decision of the House of Lords in Designers Guild Ltd v.Russell Williams (Textiles) Ltd [2001] F.S.R. 11.

47 This is the rule for literary, dramatic and musical works under the CDPA, s.3(1).48 This would appear to be the case in relation to the ‘‘artistic works’’ listed in the CDPA, s.4.



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completion on the participation of the spectator— because the principle implies thatevery aspect of a work must be attributable to its creator. The notion that a work is an(intangible) objectification, in a bounded expressive form, of human creativity issimilarly crucial to the capacity of copyright law to accommodate contemporary visual

art, for it excludes any art practice that resists its own reifi

cation: conceptual art, someof which liquidates the object entirely; and performance art, which yields an eventunfolding in time rather than a spatially delimited artefact.49 The requirement of embodiment or fixation is no less important: it has the consequence that any form of artistic endeavour which does not yield some tangible thing, or some record of an event,performance or ‘‘happening’’, cannot be or generate anything that constitutes a work inlaw. Finally, the concept of the work also imposes constraints on the kinds of tangiblethings in which the work can appear: the materialisation of the work cannot be ahuman being as such50; it must arguably be reasonably permanent51; and it cannot beliable to decay, disappearance or continuous change.52 The implications of all this for body art, installation art, environmental art, kinetic art, and any art which involves theuse of organic or unstable components should be clear.

Does all of this justify the conclusion that the legal concept of the work reflectscopyright law’s commitment to a particular aesthetic theory? As I have arguedelsewhere,53 the answer to this question must be ‘‘no’’, because the work concept hasactually been generated by the copyright system’s more fundamental commitment tothe logic of property. Copyright law is a branch of property law, and the chief functionof property law is to delineate the entities which may be objects of exclusive privatecontrol and identify the persons in whom those rights of control may be vested.Because of their amorphous character, intellectual entities pose particular dif ficulties of identification and attribution, and the concept of the work is a response to thosedif ficulties: in order to position an intangible entity as an object of property, the lawmust be able to see it as identifiable and self-suf ficient, attributable to some determinateauthor, and perceptible to the senses through the physical medium in which it isrecorded or embodied. So if copyright’s ‘‘way of seeing’’ the work has blinded it tomany contemporary practices in the visual arts, and it clearly has, then this is not, Iwould argue, the effect of deliberate aesthetic prejudice, but simply a by-product of copyright law’s pursuit of certainty, objectivity and closure.

The same can be said of another, rather different, pattern within current legalthinking about the ‘‘objects’’ protected by copyright. This also has serious repercus-sions for copyright’s capacity to accommodate the art of today; and it also does notderive from Romanticism, though it closely parallels a quite different attitude towardsthe arts that long preceded the Romantic movement. I refer here to the law’s tendency

49 At best, copyright law might be able to accommodate some forms of performance art as ‘‘dramaticworks’’ under the CDPA s.3(1), but again, only if there is some record of the performance (which could be a photograph or video): a ‘‘happening’’, for example, of which no record exists, will get no pro-tection.

50 Merchandising Corporation of America Inc v. Harpbond Ltd [1983] F.S.R. 32.51 J & S Davis (Holdings) Ltd v. Wright Health Group Ltd [1988] R.P.C. 403; Creation Records v. News

Group Newspapers [1997] E.M.L.R. 444. Cf. Metix Ltd v. GH Maughan Plastics Ltd [1997] F.S.R. 718.52 Komesaroff v. Mickle [1988] R.P.C. 204.53 Anne Barron, ‘‘No Other Law? Property, Author-ity and Aboriginal Art’’ in Lionel Bently and

Spyros Maniatis (eds.) Intellectual Property and Ethics (Sweet and Maxwell, London, 1998), pp. 39–87.

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to define different species of work as significant for copyright purposes and to dis-tinguish these by reference to the nature of their material carriers; the way these aremade; the system of signification deployed within them; and the way they areperceived by those who experience them. This tendency also testifies to the dif ficulties

posed for the law by the amorphous character of intangible entities, because it answersto the need for objective and certain criteria for defining these entities in the process of singling them out for legal protection. To this end, the law dis-aggregates the categoryof ‘‘artistic works’’ into what appears to be a list of material artefacts (paintings,sculptures, drawings and so forth). Further, it defines the works embedded in theseartefacts by focusing on the means by which they are materialised. Yet it is precisely thisway of thinking about artistic works—in terms of what art theorists would call their‘‘media’’—that has striking parallels in art theory: the particularising trend in art theorythat was outlined briefly above. In the next section I elaborate on how the entities listedin section 4 of the current Copyright Act as ‘‘artistic works’’ are defined in law. In asubsequent section I examine the most important eighteenth century exponents of theparticularising approach to aesthetic appreciation, and consider how Clement Green- berg elaborated his credo of formalist Modernism from it in the mid twentieth century.In the final section I summarise the parallels between Greenberg’s pursuit of anaesthetic of ‘‘truth to media’’ and copyright’s ostensibly anti–aesthetic definitions of genres of visual art.

Medium-specific ‘‘artistic works’’

Section 4 of the Copyright, Designs and Patents Act 1988 lists an array of entities as belonging to the category of ‘‘artistic works’’, and thus as entitled to copyrightprotection. A number of points have already been noted about section 4: the absence of an overarching concept of ‘‘art’’ from the section, its taxonomic approach to thedefinition of ‘‘artistic work’’, and the exclusion of any criterion of artistic quality fromthe definition of most of the entities listed in the section. Here, attention will be drawn

to a further peculiarity of the section: everything listed there is a tangible thing, whereasthe works protected by copyright law are of course intangible. True, the courts haverepeatedly stressed—although this is nowhere expressly stated in the legislation—thatwhat distinguishes artistic works from other categories of protected work is that theycontemplate material which is ‘‘visually significant,’’54 thus emphasising that whatsection 4 protects are visual representations (in two or three dimensions), which areembedded in physical things. Nonetheless, I will argue here that the section’s apparenttendency to (con)fuse the tangible and the intangible is replicated in the approach taken by the courts to the interpretation of section 4. The courts, that is to say, havepropagated a tried and tested method—familiar from the very earliest period of copyright’s application to the visual arts55—of defining paintings, sculptures, engrav-ings, drawings, collages and so on by focusing on the material artefacts through which

54 Interlego v. Tyco, op. cit. note 13.55 The early Acts relating to engravings described the object of protection as a ‘‘print’’, made by a

process of ‘‘engraving, etching or working, in mezzotinto or chiaroscuro’’. Again, the eighteenth andearly nineteenth century Acts relating to sculptures referred to ‘‘models’’ and ‘‘casts’’ of busts, and‘‘statues’’ of human and animal figures.



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visual representations of these kinds are ‘‘normally’’ made manifest, and upon thecrafting processes which ‘‘normally’’ result in these artefacts. This can be illustrated bymeans of a brief examination of cases decided under the terms of the U.K. copyrightlegislation and the equivalent legislation of other common law jurisdictions.

In Merchandising Corporation of America Inc and Others v. Harpbond Ltd and Others,56

Lawton L.J. was confronted with the argument that make-up applied to a person’s faceyielded a ‘‘painting’’ within the meaning of the 1956 Copyright Act (U.K.). The judgedemurred, insisting that ‘‘paint without a surface is not a painting’’57 and that thehuman face or body could not be a surface in the relevant sense. While this conclusionfollows from the judicial tendency to give terms such as ‘‘painting’’ and ‘‘sculpture’’ themeanings assigned to them by ordinary dictionary definitions, it is worth noting thatLawton L.J. seemed to be troubled by the fact that make-up on a face, by its nature, isnot designed to be permanent, and ‘‘if the marks are taken off the face there cannot bea painting’’.58 It would seem that the dif ficulty hinted at here by the judge is that of conceiving of the copyright work other than by analogy to, if not as, a physical object:hence ‘‘a painting is not an idea: it is an object’’.59 Whatever the thinking underlying the judgement, its net effect is to set up as indispensable to the existence of a painting, forlegal purposes, the presence of visually significant marks applied to a surface, pre-sumably canvas, paper or the like, with paint. A similar preoccupation with specificmeans and materials as definitive of the particular artistic media referred to in thelegislation is evident in the case law relating to drawings, engravings, sculptures andcollages. In an early case on drawings, for example, it was said of a very crude linedrawing that it was ‘‘not a pleasing, particularly accurate or tasteful representationupon paper of the object represented, nor does it appeal to imagination, affectation,memory or association’’.60 Nonetheless, being an original ‘‘representation on paper’’, itacquired the protection of copyright as a drawing. In the Australian case of Green fieldProducts Pty Ltd, v. Rover-Scott Bonnar Ltd,61 Pincus J. departed from the reasoning inWham-O MFG Co. v. Lincoln Industries62 in relation to engravings—where a mouldwhich had been cut with a lathe from a steel die block to create the desired shape of aplastic frisbee was held to be an engraving— but offered an equally ‘‘materialist’’,though narrower, definition of engraving instead:

‘‘I do not well understand why the court [in Wham-O] thought that working at a lathecutting into a rotating piece of metal with a tool is the work of engraving . . . . [I]t isnot all cutting which is engraving; for example to cut a steel rod into lengths is notto engrave it . . . . The term does not cover shaping a piece of metal or wood on alathe, but has to do with marking, cutting or working the surface—typically a flatsurface—of an object’’.63

56 [1983] F.S.R. 32.57 ibid. at 46.58 ibid.59 ibid.60 Kenrick v. Lawrence (1890) L.R. 25 Q.B.D. 99.61 (1991) 95 A.L.R. 275.62 [1984] 1 N.Z.L.R. 641, [1985] R.P.C. 127, Court of Appeal of New Zealand.63 (1991) 95 A.L.R. 275, at 284–5.

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In Breville Europe plc v. Thorn EMI ,64 Falconer J. accepted that a plaster cast of asandwich made for the production of die-casting moulds for the heating plates of asandwich toaster could be a sculpture under the 1956 Copyright Act. The word‘‘sculpture’’, he said, should be given its ordinary dictionary meaning—the art of

forming representations in the round or in relief by chiseling stone, carving wood,modeling clay, casting metal or similar processes—and anything which is the result of one of these processes ought to qualify as a sculpture in law. (Similarly, a hand-carvedwooden model of a frisbee was found to be a sculpture in Wham-O.) It has also beensuggested that where an artefact cannot have a permanent existence because of thematerial with which it is made, it cannot be a sculpture as a matter of law. 65 Howeverit is the treatment of collages in the case law that perhaps most exemplifies the‘‘materialist’’ approach to defining artistic works. In Creation Records Ltd v. News GroupLtd66 Lloyd J. said that ‘‘collage’’ involves ‘‘as an essential element the sticking of twoor more things together. It does not suf fice to point to the collocation, whether or notwith artistic intent, of . . . random, unrelated and unfixed elements . . . ’’67

To the artist or art critic, all of this will seem astonishingly at odds with contempo-rary practices in the visual arts, although the judges themselves have not appeared tofind this lack of fit particularly troubling. Thus although it was pointed out by theplaintiff in Creation Records that the 1988 Act should not be construed to deny protectionto the ‘‘great variety of novel forms’’ of visual art as artistic works under section 4,Lloyd J. simply said that he did not consider it necessary or appropriate to concernhimself with that issue. (Lloyd J. did regard it as significant that artworks such as ‘‘CarlAndre’s bricks . . . the stone circles created by Richard Long . . . Rachel Whiteread’shouse . . . the living sculptures of Gilbert and George and . . . installation art generally’’are not ‘‘intrinsically ephemeral’’68 because designed to last for a reasonable period of time, but whether this meant that they could in Lloyd J.’s opinion qualify as artisticworks does not emerge clearly from his judgement. It is certainly very dif ficult to finda category in section 4 in which these artworks could be comfortably accommodated.)Thus far, the courts have been driven to confront two quite different problems that haveemerged from their interpretation of section 4. The first is the problem of how to devisea principle by which to distinguish ‘‘sculptures’’ and ‘‘engravings’’ from manufacturedthree-dimensional objects in general. The second is the problem of how to distinguish‘‘artistic works’’ from the other categories of work protected by the Act, particularlyliterary and dramatic works. Both of these dif ficulties arise because of the lack of anyoverarching definition of the term ‘‘artistic’’ in the legislation, and the fact that thecourts have been more or less disqualified from importing any criterion of aestheticmerit into their interpretation of section 4—all of the items listed there, with theexception of works of artistic craftsmanship and works of architecture, being expresslystated to be protected ‘‘irrespective of artistic quality’’. The inclusion of this phrase inthe Act reflects an assumption that aesthetic evaluations are necessarily subjective, and

64 [1995] F.S.R. 77.65 J & S Davis (Holdings) Ltd v. Wright Health Group Ltd [1988] R.P.C. 403. Cf. Metix Ltd v. GH Maughan

Plastics Ltd [1997] F.S.R. 718.66 [1997] E.M.L.R. 444.67 ibid. at 451.68 ibid.



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a legislative concern not to invite judges to become involved in subjective evaluations:‘‘no test . . . can have been entrusted to [the courts] unless it is one from which there areexcluded any questions of taste, subjective quality and personal opinion; it exceeds thefunctions of a court of law to adjudicate on these, indeed they are inconsistent with the

very concept of the rule of law’’

.69

Yet in seeking to pursue one set of legal values—

objectivity and judicial impartiality—copyright law has compromised others to whichit is also, necessarily, committed: notably the avoidance of monopoly and the achieve-ment of definitional certainty.

This can be illustrated first in relation to the dif ficulties that have arisen over themeaning of ‘‘sculpture’’ and ‘‘engraving’’ in copyright law. As long as the materials bywhich sculptures were ‘‘normally’’ made, and the ‘‘normal’’ manner of their making,distinguished them clearly from other kinds of object, the lack of a criterion referringto their artistic quality was not experienced as creating definitional problems. However,twentieth century developments in sculpture (the shift from casting and forming to theconstruction of ‘‘sculptures’’ using pre-fabricated materials) have made it possible toargue that prototypes for ordinary, industrially manufactured objects of commerce arealso sculptures, and so protected from copying by the manufacturer ’s trade rivals. Aslong as judges continued their past practice of invoking physicalist de finitions of sculpture focusing on the character of the material object and the processes by whichit was made, it was thus inevitable that industrial prototypes would gain the protectionof copyright law.70 Yet this conflicted with the well-established policy of not allowingmanufacturers to avail of copyright to monopolise the shapes of objects—particularlyfunctional objects—on the ground that otherwise, competition between manufacturerswould be needlessly impeded.71 In Metix Ltd v. GH Maughan Plastics Ltd,72 Laddie J.attempted to finesse this dif ficulty by requiring a showing of artistic intent on the partof the maker of the object in issue in that case, a mould for a cartridge intended forindustrial use. Considered in the light of this new test, the claim of copyrightpredictably failed. The manufacturers, Laddie J. found, did not consider themselves(nor did anyone else consider them to be) artists when they designed the moulds inissue: they devised the shape for the purpose of achieving a particular functional affectonly. A sculpture, he went on, is a three-dimensional work made by an artist’s hand.73

Now clearly, without a further definition of what an artist is, or what it would mean tohave an ‘‘artistic’’ intent in the making of something, this new formulation of what asculpture means in law is somewhat opaque. Yet it is interesting that Laddie J. thoughtit necessary to retreat to an aesthetic conception of sculpture (albeit one formulated interms of a test of intention rather than quality) in the face of this attempt to ‘‘abuse’’ thecopyright system by claiming protection for something which had ‘‘[no] independentsignificance outside a commercial production process’’.74 Arguably, this testifies to a

69 H. Laddie et al., op. cit. note 15, p. 197.70 J & S Davis (Holdings) Ltd v. Wright Health Group Ltd op cit. note 64 (dental impression tray); Wham-

O MFG Co. v. Lincoln Industries op cit., note 60 (prototype frisbee); Breville Europe plc v. Thorn EMI op citnote 62 (plaster cast for sandwich toaster).

71 See, for example, the discussion in British Leyland v. Armstrong [1986] 1 ALL E.R. 850.72 [1997] F.S.R. 718.73 ibid. at 722.74 ibid. at 721.

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deep-seated ambivalence about copyright’s relationship to both art and commerce, anda kind of strategic uncertainty about whether the line between protected and unpro-tected subject matter is in the same place as the line between art and commerce.

If Metix leans towards the view that a sculpture is, for copyright purposes, distinct

from an industrial prototype because it has something to do with‘‘

art’’

, a recent casedecided in the Patents County Court75 leans in the other direction. Here a questionarose as to whether a metal plate embodying a ‘‘non-slip’’ design for the underside of a rubber car mat could be an engraving within the meaning of section 4. The Recorder,Christopher Floyd Q.C., declined to extend the Metix principle to engravings, suggest-ing that this principle was at most confined to sculptures and was in any case dif ficultto reconcile with the requirement that copyright subsists in sculptures ‘‘irrespective of artistic quality’’: ‘‘[t]hose words . . . are intended to deter a Court from attempting toanswer dif ficult questions involving artistic judgement’’.76 Regarding engravings,however, the Recorder’s judgment is itself less than satisfactory, and its shortcomingscan again be traced to the dif ficulties confronted by the courts in distinguishing thethree-dimensional artistic works mentioned in section 4 from manufactured objects ingeneral. Although he expressly agreed with the words of Pincus J. in Green field (quotedabove), the Recorder held that metal plates, cut and shaped in such a way as to achievea three-dimensional effect in the impressions taken from it, were engravings—eventhough the cutting process here went well beyond marking the surface of the metalplate (the kind of process Pincus J. regarded as exemplary of engraving) and extendedto shaping the internal surfaces of the grooves that had been cut into the metal. Thedefendant had tried to argue that such a shaping process yielded, if anything, a cast fora sculpture, not an engraving; and as the Recorder pointed out, this was tantamount topositing a rigid distinction between engraving and sculpture in terms of whether thefinished objects which result from these processes are perceived in two dimensions orthree.77 The Recorder, however, refused to accept the validity of this distinction, notingthat an engraved plate (which exists in three dimensions), no less than an impressionmade from it, is clearly an ‘‘engraving’’ within the meaning of that section.78 ‘‘Once itis conceded that the engraving plate is itself a graphic work protected in its own right,all the skill and labour which contributes to its own appearance should be pro-tected.’’79

With all due respect to the Recorder, this conclusion does not follow from its premise;nor is it consistent with the scheme of section 4 as a whole. While the Recorder’sconception of what ‘‘should be protected’’ as an engraving predictably focuses on theaesthetically neutral crafting (‘‘skill and labour ’’) processes involved in the productionof what are described in the judgement as ‘‘metal objects’’, together with the visualeffect (the ‘‘appearance’’) yielded by these processes, it is not qualified by any referenceto the specificities of engraving as a particular kind of crafting process, producing visualeffects which are distinct from those resulting in sculpture and each of the other forms

75 Hi-Tech Autoparts Ltd v. Towergate Two Ltd (No. 1) [2002] F.S.R. 254.76 ibid. at 266.77 ibid. at 265.78 James Arnold & Co. Ltd v. Miafern Ltd [1980] R.P.C. 397.79 Hi-Tech Autoparts Ltd v. Towergate Two Ltd (No. 1) op cit note 75, at 265 (emphasis added).



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mentioned in section 4. Yet it is surely the skill and labour of engraving, contributing tovisual effects peculiar to engraving, which ought to be protected in the physical objectthat results from the engraving process. The logic of section 4 itself requires that areference to these specificities be built into the definition of engraving: its wording does

indeed assume, contrary to the Recorder’s view, that the categories listed there aremutually exclusive; and the only accepted way of distinguishing between them, as we

have seen, is in terms of the differences between the material objects to which thesecategories refer, between the physical processes involved in producing these objects,and between the visual experiences to which they give rise. For this reason, it issubmitted that the defendants were correct to argue that a distinction betweenengravings and sculptures is called for by section 4. Of course, the distinction is adif ficult one to make, and the cutting/shaping (or 2D/3D) distinction suggested by thedefendants is by no means watertight. However, in rejecting the validity of thatdistinction completely, the Recorder implicitly gave precedence to Wham-O overGreen field, and paved the way for many more attempts by manufacturers to invokecopyright protection in respect of their three-dimensional prototypes—if not as sculp-tures, then as engravings—as a means of forestalling competition from trade rivals.And in a second manufacturer-friendly judgement given in relation to a different pointarising between the same parties on the same facts, the Recorder added that everyimpression taken from such a plate (including the rubber mats in the instant case) isalso capable of being an engraving. He thus rejected the defendants’ argument thatthere is a distinction to be drawn within the class of impressions such that, for example,pictures made from engraved plates are deserving of legal protection whereas func-tional objects are not.80 Significantly, the reason given was as follows:

‘‘I suspect that the distinction that the defendants are asking me to draw is betweenimpressions which people would regard as ‘art’ and those which people wouldnot . . . . To draw such a line would involve the court in matters of artistic judgement,leading to uncertainty’’.81

Yet in achieving the goal of legal certainty, the Recorder arguably compromised anotherimportant goal of the copyright system: that of achieving a ‘‘ balance’’ between monop-oly rights and the public interest in competitive markets.

The absence of a definition of ‘‘artistic’’ in law—and the uncertainty to which this inturn gives rise—has been confronted from a different direction in cases where,although there is no doubt that the work in issue is protected by copyright, it is notclear what kind of work (literary, dramatic, musical, artistic) it ‘‘essentially’’ is. Here the burden of definition is entirely borne by criteria derived from the manner in which thevarious categories of protected work are perceived by those who experience them.Thus an artistic work, it is generally conceded, is essentially something which can beappreciated by the eye. Of course, the same could be said of certain kinds of dramatic

work—mimes, for example— but here the courts would invoke a further distinction

80 Hi-Tech Autoparts Ltd v. Towergate Two Ltd (No. 2) [2002] F.S.R. 270.81 ibid., at para. H16.

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between visual experiences that unfold in time, because they involve action,82 andthose that exist ‘‘instantaneously’’, as it were, in space. The latter, presuming alwaysthat they are original products of an author in the sense outlined above, and fit withinone of the categories listed in section 4, are artistic works; the former would be

dramatic works. Against this background, one can only wonder about the legal statusof pieces such as Cornelia Parker’s ‘‘The Maybe’’ (1995), where the artist ‘‘exhibits’’ themotionless form of actress Tilda Swinton as she lies asleep in a glass case. Furthercategorisation dif ficulties arise in relation to hybrid artworks such as word paintings:works comprised of sentences painted on canvas with paint. Are these artistic worksunder section 4, or literary works under section 3, or both? The ‘‘circuit diagram’’ casesare relevant here. It has been pointed out in several cases that circuit diagrams containinformation about the components of a circuit and how those components are con-nected to each other, and that they convey this information in a form of notation, i.e.engineers’ notation. Therefore, it has been argued, they qualify as literary works withinthe meaning of section 3 of the Act—‘‘any work . . . which is written’’ in any form of notation or code (and therefore capable of being read)—even though ostensibly theyare diagrams, and so also artistic works within section 4. Jacob J. responded favourablyto this argument in Anacon Corporation Ltd v. Environmental Research Technology Ltd.83 InElectronic Techniques (Anglia) Limited v. Critchley Components Limited,84 however, Laddie J.—noting that the correct identification of the particular category into which a workfits can be of importance in determining both the duration and the scope of thecopyright in it—insisted that there are compelling arguments (presumably argumentsfrom legal certainty) for confining the author of a ‘‘ borderline work’’ (i.e. one that mayfit into more than one category) to ‘‘the category which most nearly suits the work inissue’’.85 However, since determining this category will in turn, necessarily, involvedif ficult assessments about which opinions may reasonably differ, legal certainty ishardly served by Laddie J.’s judgement in this case either. What is really needed,though lacking from both legislation and case law, is a reliable criterion, moresubstantial than that of ‘‘visual significance’’, for distinguishing artistic works fromother kinds of protected subject matter.

Medium-specific arts

The law’s mode of conceptualising artistic works in terms of what art theorists wouldcall their material and perceptual ‘‘media’’ has striking parallels with a certain ten-dency in art theory itself: what I have called the particularising trend in aestheticthought. Lessing’s Laocoon (1766)86 is perhaps the most important document in thistradition of theorising about the arts. Here Lessing, while acknowledging that poetryand painting are united in their common purpose of eliciting an aesthetic responsethrough the (mimetic) representation of beautiful objects, followed Jean-Baptiste

82 Norowzian v. Arks No. 2 [1999] E.M.L.R. 67.83 Anacon Corporation Ltd v. Environmental Research Technology Ltd [1994] F.S.R. 659.84 [1997] F.S.R. 401.85 ibid. at 413.86 G. E. Lessing, Laocoon: An Essay on the Limits of Poetry and Painting (trans. E.A. McCormick) (John

Hopkins University Press, Baltimore, Md., 1984).



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Dubos’ earlier Critical Re flections on Poetry and Painting (1719) in sharply distinguishingthese arts, and locating the identity of each, in the type of ‘‘sign’’ they employed. Poetryarranges (‘‘arbitrary’’) signs—sounds—in time; painting deploys (‘‘natural’’) signs—colours and figures—in space, and ‘‘from the difference of these means all the specific

rules for each art are to be derived’’

. Within the category of natural signs, Lessing’scontemporary Moses Mendelssohn further distinguished between audible and visible

signs, a distinction that corresponded to the sense organs of hearing and sight to whichthese signs respectively appealed. Visible natural signs were further subdividedaccording to whether they were arranged successively in time or simultaneously inspace, and the latter category was bifurcated yet again in terms of dimensionality:spatial forms were either two-or three-dimensional. Thus music deploys audiblenatural signs, and dance visible natural signs, in time; sculpture and painting eachemploy visible natural signs in space, the former in bodies, the latter on surfaces.87

Lessing did not attempt a systematic classification of the arts, dealing only withpainting and poetry, but like Mendelssohn he prioritised visuality over spatiality incharacterising the signs deployed by painting: indeed this is why he was able to elide

sculpture under painting within his analysis of the plastic arts,88

thus neglecting todemarcate the former from the latter. Yet another of Lessing’s German contemporaries, Johann Gottfried Herder, sets out specifically, in his Plastik (1778), to inquire into the basis of the differences between painting and sculpture. His answer was this: ‘‘[t]o sight belong only planes, paintings, figures of one plane, but bodies and shapes of bodies belong to touch’’.89 Herder ’s attentiveness to, and celebration of, the sense of touch wasrevolutionary for its time, and is notably absent from Lessing’s Laocoon. As Wellberyargues, this is symptomatic of a broader tendency within Lessing’s analysis towardsthe erasure of the materiality of the expression-plane—and with it, space experiencedas tactile differentiation—despite his explanation of painting as characterised by thedeployment of signs in space. ‘‘It seems, rather, that the spatiality of the plastic arts isless important than their visibility. The concept of space is tailored to the concept of

vision: it is . . . space as seen . . . the simultaneity of things within a synoptic view . . .their co-existence within a momentary vision.’’90

It is this pure optical space that re-emerges in the 1960’s in Clement Greenberg’s (andMichael Fried’s) writings as the space of painting alone, quite distinct from the three-dimensionality which is ‘‘the province of sculpture.’’91 Greenberg first acknowledgeshis debt to Lessing, however, in the title of an early essay, ‘‘Towards a NewerLaocoon’’,92 where his concern is to distinguish painting, not from sculpture so muchas from literature, and so to contain the threat posed to visual art by those artmovements that seemed bent on reproducing the effects of literature within painting.

87 D. E. Wellbery, Lessing’s Laocoon (Cambridge University Press, Cambridge, 1984), p. 86 ff.88 ibid. p. 116.89 Quoted in Barasch, op. cit. note 17, p. 166.90 Wellbery, op. cit. note 86, p. 115.91 Clement Greenberg, ‘‘Modernist Painting’’ in C. Harrison and P. Wood, eds., Art in Theory,

1900 – 1990 (Blackwell, Oxford, 1992), pp. 754–760, 756.92 Greenberg, ‘Towards a Newer Laocoon’ in Harrison and Wood op. cit. note 90, pp. 554–560.

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Here he appears to follow the eighteenth century precedent of linking the specificity of each art to the unique way in which its material of expression is perceived: each art,Greenberg seems to suggest, must articulate with the kind of perceptual experienceinvolved in the apprehension of its characteristic products. In terms reminiscent of

Herder, he argues that the avant garde had discovered the key to art’s self-preservationin the principle that each of the arts ‘‘should be defined solely in terms of the sense or

faculty which perceived its effect and by excluding from each art whatever is intelli-gible in terms of any other sense or faculty ’’.93 What is ‘‘new’’ in Greenberg’s analysisrelative to Lessing’s, however, is his emphasis on the ways in which the media of artistic expression resist or channel the possibilities for communicating sensations. ForLessing, the materiality of the medium through which sensation is conveyed hadconstituted an obstacle to, as well as a vehicle for, the experience of the imaginedaesthetic object that art strives to represent. ‘‘What Lessing repeatedly urges for art isthe transformation of matter into the immateriality of a mental representation, theelimination of every material residue which could burden or limit the movement of theimagination’’.94 For Greenberg, on the other hand, it is precisely in the recalcitrance of its medium that each art finds the key to its sovereign purity: ‘‘it is by virtue of itsmedium that each art is unique and strictly itself. To restore the identity of art theopacity of its medium must be emphasised’’.95 The medium of each art, that is, resiststhe unrestrained expression of artistic content, but precisely in its resistance, permitsthe distillation of the unique experience provided by each art.

‘‘The arts . . . have been hunted back to their mediums, and there they have beenisolated, concentrated and defined’’.96 For Greenberg, medium, the key to each art’sspecificity, serves a number of related purposes. It demarcates an autonomous jurisdic-tion for each art: ‘‘the unique and proper area of competence of each art coincide[s]with all that is unique to the nature of its medium. ’’ It serves as a criterion by whicheach of the arts can be purified of anything extraneous to its nature, i.e. any effect thatmight be borrowed from the medium of any other art. And as such, it provides ‘‘theguarantee of [each art’s] standards of quality as well as of its independence ’’.97

Greenberg’s attentiveness to medium is particularly carefully elaborated in relation topainting. In ‘‘Modernist Painting’’ he indicates that ‘‘the limitations that constitute themedium of painting [are] the flat surface, the shape of the support, the properties of pigment,’’ and later in the same essay alights on ‘‘flatness’’ as the most fundamental of these because it ‘‘was the only condition painting shared with no other art’’.98 Byreference to norms derived from these physical properties—‘‘flatness and its delim-itation’’—Greenberg is then able to write the history of painting, locate its trajectory,and identify its canon. The key to his story is painting’s suppression of the sculptural,carried on at first (in sixteenth century Venice) in the name of colour, continuing moreself-consciously from the mid-nineteenth century with the pictorial avant garde’s

93 ibid. p. 557.94 D. E. Wellbery, op. cit. note 86, p. 116.95 C. Greenberg, op. cit. note 91, p. 558 (emphasis added).96 ibid.97 C. Greenberg, op. cit. note 90, p. 755.98 ibid. p. 756.



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‘‘progressive surrender to the resistance of its medium’’99 and continuing through theabandonment of chiaroscuro by Manet, of linear perspective by Cezanne, of Euclideanspace by the Cubists, and of figuration by the first abstractionists.1 In this way,Greenberg seeks to justify abstraction as the fulfilment of painting’s inexorable histor-

ical destiny.Formalism as an aesthetic doctrine therefore necessarily accompanies Greenberg ’sconception of medium-specific art, for if the history of painting simply is a history of the development of visual form, its only subject matter being the medium-relatednorms of painting itself, it can only be evaluated in terms of the visual characteristicsof the works that comprise it. Greenberg thus identifies as ‘‘the first and most importantitem upon [the] agenda [of the nineteenth century avant garde] . . . the necessity of an

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