Guest post by Amy Thomas, CREATe (CMS bursary) PhD student and sub-editor of CREATe’s Copyright Evidence Wiki
In the first of CREATe’s Autumn 2017 Public Lectures, Lilla Montagnani (Universita’ Bocconi, Milan) discussed the varied and challenging complexities of the relationship between public art and copyright law. The lecture took place on the 25th of October in Glasgow University’s Arts and Humanities lecture theatre with Thomas Margoni (CREATe, University of Glasgow) as chair.
According to Lilla, the realm of “public art” covers a large and diverse range of works, ranging from sculptures and graffiti to visionary architecture and office buildings; naturally, this leads to an even broader map of conflicting interests than is already present in other copyrightable subject matters. Traditionally regulated predominantly through heritage and urban law, several high profile cases of “duplitecture” move the emphasis to copyright for (often unexpected) solutions.
Whilst architecture has been said to be the “mother of art”, copyright law has a history of struggling to accommodate both the aesthetic and creative components of architectural works alongside their more functional and societal elements. Similarly, whilst purely aesthetic or creative works are better suited to traditional understandings of literary copyright, public interest plays a role where public art expresses community values or enhances the local environment.
Arguably the main challenge of public art lies in the title itself – namely the “public” aspect – whereby, unlike with the traditional private author-owner dynamic, public art works are designed for the express purpose of existing in the physical public domain. These complexities lead us to consider whether the application of copyright to public art results in a somehow different and distinct copyright from what should be applied to other subject matters.
In seeking to answer how this impacts the traditional balance of interests in copyright, Lilla presents her findings in three distinct stages:
- Firstly by addressing the thorny issue of defining and categorising “public art” as a copyrightable subject in itself, both for public fine arts as well as architectural copyright;
- Secondly, by addressing the fragmented and scattered legal framework in copyright law, both on an economic and moral rights level. Importantly, this includes a discussion of Article 5(3)(h) of the InfoSoc Directive, and draws attention to the lack of harmonisation in this area; and
- Finally, Lilla’s taxonomy and analysis of case law serves to highlight the tilting of the delicate public-private interests balance to favouring a more collective and community-centred approach to public art.
Slides from the event are available CREATe Public Lecture Lilla Montagnani
For related guidance from CopyrightUser, see here for information on the relationship between copyright and immoral works (including graffiti), and here for further information on the relationship between copyright and buildings.