It’s one thing to create visual art. It’s a different matter to protect original artwork by copyright law. And the nuances of originality that are common in contemporary art further complicate the issue.
The resulting conflict between art and copyright never may be resolved, but the issue has been illuminated in a paper, “Copyright’s Identity Crisis in the Reflection of Contemporary Art,” written by UNC School of Law student Lauren Harkey 3L. The paper won first place in the 2013 student writing competition sponsored by the Lawyers’ Committee for Cultural Heritage Preservation.
The paper, written for Harkey’s independent study with Laura N. Gasaway, Paul B. Eaton Distinguished Professor of Law Emeritus, examines the tension between art and the law and discusses whether or not the conflict can be resolved.
“It is a great feeling to receive recognition in an area of law that I really enjoy and one that allows me to utilize my art history background,” says Harkey, who has a master’s degree in modern and contemporary art from the University of Glasgow.
The 30-page paper expanded on some of the theory that Harkey learned in her master’s courses.
The UNC School of Law independent study was essentially a continuation of the art law class that Harkey took with Gasaway, who encouraged her to submit the paper for the competition.
Copyright law focuses on issues of autonomous creativity, originality and what exactly constitutes art. But contemporary art practices — such as using everyday objects in artwork — complicate the law’s essence.
“Postmodern and contemporary art practices unhinge the central components that determine copyright’s legal protection. The resulting crisis is copyright law’s inability to protect many current visual art practices. The paper discusses the incompatible ideologies behind copyright law and contemporary art, and the resulting tension between art and the law through an analysis of the statutory requirements of authorship, originality and fixation,” Harkey says. “The paper concludes with a discussion of how to address, if at all, this conflict that unsteadies the core of copyright law.”
The paper’s assertions are reinforced by Harkey’s appended examples of artists and their creations. “She was thus able to illustrate her arguments, which I thought was extremely valuable and unique,” Gasaway says.
“Lauren has an amazing familiarity with modern, postmodern and contemporary art. She also is quite knowledgeable about research resources in art, and she incorporated many points from those works into her paper,” Gasaway says.
“Lauren analyzes the situation extremely well and finally recognizes that the tension between the development of modern art and copyright law may be inevitable. While copyright law can be amended, keeping up with the changes in art may mean that it can never truly accommodate modern art,” notes Gasaway.
As with art and copyright law, the originality of Harkey’s subject and concepts was a key criterion in the competition’s judging. The panel also assessed the quality of analysis and persuasion, ability to think critically and citation of authorities. The award carries a $1,000 prize.
Harkey says she may consider pursuing art law after she gains experience in general practice.
-October 31, 2013