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How does Copyright subsist in Abstract Art?

Ever thought how just a few sputters of paint, inaccurate shapes and forms on a blank canvass can be protected?
Most people might not be able to articulate abstract art, but it cannot be denied that among the most famous and expensively sold paintings across the world, abstract art has a significant, almost invaluable place.

There is a growing confusion over the protection of abstract art, which forms an important part of modern art, today; and, if the said protection is granted, what is the basis of the same? This confusion is rooted in the mixed and structureless interpretation of this form of art.

According to section 13 (1)(a) of Copyright Act of 1957 copyright subsists in original literary, dramatic, musical and artistic works.
And, section 2 (e) defines artistic works to mean:
  1. a painting a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
  2. an work of architecture; and
  3. any other work of artistic craftsmanship.
Thus, we do know that copyright subsists in artistic works (whether or not they posses artistic quality), which covers abstract art, which effectively comes under sub-clause (iii) of section 2 (e)

So how does an artist protect the abstract creation of his mind where there is no structured form or shape?

Let's start by understanding what abstract art actually is.
According to Encyclopaedia Britannica, abstract art, also called non-objective art and non-representative art in which the portrayal of things from the visible world plays no part. All art consist largely of elements that can be called abstract-elements of form, colour, line, tone and texture. Prior to the 20th Century, these abstract elements were employed by artists to describe, illustrate or reproduce the world of nature and of human civilisation-and exposition dominated over expressive function.

Now that we know what abstract art is, let's tackle copyright

Copyright protection is a form of intellectual property protection, that is, protection given to a creation of mind. Copyright law establishes a framework to protect artistic creation by providing a system of economic incentive[1]. The economic incentive referred to, here, is one of the many exclusive rights that are given to the author of the copyrighted work.

For copyright to subsist, the two main pillars are:

  1. the art work should be in a tangible form, and
  2. the art work should be original
Basically, just a thought, however original cannot be protected; that thought needs to see the light of the day in a tangible form to be protected. Mere ideas are not protected.

It is a well accepted principle of copyright law that there is no copyright in the facts per se, as facts are not created, nor have they originated with the author any work which embodies these facts. The issue of copyright is closely connected to that of commercial viability, and commercial consequence and implications[2].
So, if an art piece, however abstract in nature it might be, can be sold for a consideration, copyright will absolutely subsist in it; notwithstanding the fact that no viable form or structure can be construed from it.

But still, the problem of originality in abstract art is debatable and unresolved, at best. It has been vastly debated that copyright protection is discriminatory as it draws lines between traditional notion of originality and expression.

It's important to understand that originality does not mean novelty; it simply means that the work is created by the author and not copied.

The expression is what is protected. So, if the brush strokes, the colour, the perspective is close to another already published artistic work, possibly under the guise of inspiration, it's appropriation and calls from an infringement.

But how close is too close? The line between idea and expression is often blurred in abstract art and open to interpretation. The copyright protection finds justification in fair play.
Idea refers to a work's animating concept, such as a story of two star-crossed lovers, while expression refers to the ultimate, literal expression, such as the play that tells the story of the two lovers'. Courts will look at a creation and separate the idea, the unprotected part of a work, from its expression, the protected part of the work.

This separation represents an important policy decision of what parts of a work authors should be allowed to monopolise and what part belongs in the public domain, so others are free to build on them[3].

To conclude, this confusion over whether abstract art - an artistic expression without any structure, form or figure - should be protected or not is clearly covered in the Copyright Act as aforementioned. While, the debate over how copyright persists in an art piece when it cannot be comprehended, or variedly interpreted by different people, is muted by the expression of the idea. The expression need not be novel, but original. Not copied or imitated under the guise of inspiration.
So, abstract artists, you are safe!�just so long as your expression is not appropriation.

  1. Copyright Problems in Post-Modern Art, Lori Pertuzzelli; DePaul Journal of Art, Technology and Intellectual Property; Volume 5, Issue 1 Winter 1994/Spring 1995
  2. Eastern Book Company v. D. B. Modak (2008) 1 S. C. C. 1.
  3. Supra note [1]

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