United States: Pryor Cashman's Summary Of Kernochan Center 2019 Symposium: "Exploring Copyrightability And Scope Of Protection"

Last Updated: October 22 2019
Article by Megan Noh

Last week, the Kernochan Center for Law, Media and the Arts at Columbia University held its annual copyright symposium. This year's program focused on issues of copyrightability and registration, and presented a unique opportunity to gain insight from representatives of the Copyright Office (including senior members of its review board) about the Office's practices and its views on the relevant issues. The sold-out symposium was attended by academics and students, art law practitioners, in-house counsel for various cultural institutions, and other members of the broader arts community.

Pryor Cashman's Art Law Group was represented among the symposium's faculty, as partner Megan E. Noh was a member of the final roundtable discussion of the day.

Scope of Protection; Threshold for Sufficient Creativity

As a foundation for the day, representatives of the Copyright Office examined some basic limitations of copyright protection, including the inability to register a claim based on standard expressions of an idea, stock characters and settings (i.e., scčnes-ŕ-faire), or elements common to a particular subject matter or medium. Panelists observed a strong correlation between the amount of human control exercised on the output of an artistic process (described by one panelist as "qualitative agency"), on the one hand, and recognition by the Copyright Office of sufficient creative authorship, on the other.

Pryor Cashman's Art Law Group works closely with the broader Intellectual Property Group on the registration needs of a broad range of clients in the visual arts, film, and music industries.

New Modes of Authorship

The vibrant market for Post-War and Contemporary Art continues to realize seven- and eight-figure prices for minimalist works that employ simple shapes or text (like those of Ellsworth Kelly and Christopher Wool), works involving ephemeral and/or alternative media (like those of Andy Goldsworthy and James Turrell), and works that are designed to be "additive" as a result of the participation of viewers (like certain works by Yayoi Kusama). At the same time, in recent years, new challenges have emerged with respect to registration of such works, sometimes resulting in a disconnect between what is recognized by the artistic community and the art market as a "work of art" (in terms of artistic merit or historical significance), and what the Office deems subject to copyright protection.

Panelists also explored the question of copyrightability in relation to protection under the Visual Artist Rights Act ("VARA"), making prominent reference to Cady Noland's Log Cabin work, also the subject of a case currently being litigated by Megan E. Noh and Bill Charron, Noland v. Janssen et al (No. 2017-cv-05452 (S.D.N.Y. 2017)). Pryor Cashman's Art Law Group has deep experience both litigating and transacting conceptual and installation artworks and addressing related questions arising under the VARA.

Useful Articles versus Works of Artistic Craftsmanship

The symposium also covered the developing understanding of the protection afforded to the design of useful articles—i.e., protection of such an article's pictorial, graphic, or sculptural authorship that can be identified separately from an article's utilitarian qualities. Panelists discussed the "separability" test in the wake of the United States Supreme Court's decision in Star Athletica, LLC v. Varsity Brands, Inc. (580 U.S. __, 127 S. Ct. 1002 (2017)), and queried whether registration of certain items as "works of artistic craftsmanship" (as defined by Section 101 of the Copyright Act) might be advantageous for authors seeking to avoid the application of such standard.

As part of its cutting-edge copyright practice, Pryor Cashman's Art Law Group monitors for updates to the Compendium of US Copyright Office Practices—such as those that are anticipated with respect to the potential distinction between useful articles and works of artistic craftsmanship—and regularly provides strategic guidance to clients about the impact of such developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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