The illustrious IP Kat blog ("we put the meow in IP"), mewsed today about liability and exceptions for copyrighted works displayed in public. See ipkat.com. My feline friends recalled a 2002 decision by the German Bundesgerichtshof involving alleged artist Christo, who successfully stopped postcards from being sold depicting his wrapping of the Reichstag. See here. many many years ago, in my beloved Northern California, Christo unveiled one of his early works, miles of white fence stretching from the Pacific Ocean to a highway north of Novato in Marin County. I drove by it every day going to work. It looked like a very long roll of toilet paper. A few years ago, he similarly treated Central Park in NYC. One person's commerce is another's art, perhaps, and I have no doubt that the result in the U.S. would be the same as it was in Germany, for we have no general exception from infringement for works of art displayed in public, unlike Section 62 of the UK Act:
Section 62.—(1) This section applies to— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public. (2) The copyright in such a work is not infringed by— (a) making a graphic work representing it, (b) making a photograph or film of it, or (c) broadcasting or including in a cable programme service a visual image of it. (3) Nor is the copyright infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright.
Its not clear to me that this provision would have helped Christo, since I am not sure his promiscuous use of Cottonnelle qualifies as a sculptural work or a model of one. In the U.S. we have fair use which might excuse particular uses of works like Christo's or other works of art displayed publicly, and in the case of architectural works, we have Section 120(a):
(a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
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I think the application of section 120 to buildings is reasonably straightforward because of the interpretative material available with respect to what constitutes a building under that section. With art, the question becomes more difficult because it raises the initial question of what constitutes art. Personally, I would consider Christo to be an artist as opposed to an alleged artist even though his work does not particularly interest me.
Courts tend to try to avoid getting into the issue of what is art (or what is good art) although the Ninth Circuit in Poe
v. Missing Persons , 745 F.2d 1238 (1984) presented the following factors in determining whether an alleged swimsuit was a work of art: (1) expert evidence may be offered concerning the usefulness of the article and whether any apparent functional aspects can be separated from the artistic aspects,(2) evidence of Poe's intent in designing the article may be relevant in determining whether it has a utilitarian function,(3) testimony concerning the custom and usage within the art world and the clothing trade concerning such objects also may be relevant, and (4) the district court may also consider the admissibility of evidence as to Aquatint No. 5's marketability as a work of art. This strikes me as a reasonably good approach because it invites testimony from those in the art and utilitarian objects world as opposed to relying on the sensitivities of judges. However, the Ninth Circuit has been criticized on this blog so often that it sometimes seems that there is a presumption of incorrectness. Alas, maybe we need to wait until the Second Circuit speaks on this issue to have a presumptively correct approach. I suppose the Poe test could be criticized as allowing high-end craft to be protected by copyright. On the other hand, if an $8000 basket is intended to be kept and viewed as art, is this necessarily a wrong approach?
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