A project submitted to the University of Mumbai for the degree.

Post Graduate Diploma in Intellectual Property Rights

University of Mumbai

Topic: Challenging Relationship Between

Contemporary Art and Intellectual Property
By

Swapnil Moreshwar Tembhurne

Contact No: 9920453877

University of Mumbai

Mahatma Gandhi Road, Fort, Mumbai, Maharashtra 400032

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NAME: SWAPNIL MORESHWAR TEMBHURNE.

MOBILE NO: +91 9920-4538-77

EMAIL ID: [email protected]

TITLE: “CHALLENGING RELATIONSHIP

BETWEEN CONTEMPORARY ART AND
INTELLECTUAL PROPERTY”

GROUP: POST GRADUATE DIPLOMA IN

INTELLECTUAL PROPERTY RIGHTS

(YEAR - 2022-2023)

UNIVERSITY: “DEPARTMENT OF LAW”

(UNIVERSITY OF MUMBAI)

SUBMITTED TO: DR. SANJAY JADHAV SIR.

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 TABLE OF CONTENT

SR NO. TOPICS PAGE NO

1. ABSTRACT
2. INTRODUCTION & BACKGROUND
3. ANCIENT PERIOD AND MODERN TIME
OF INTELLECTUAL PROPERTY
4. DEFINING CONTEMPORARY ART
5. IMPORTANCE OF CONTEMPORARY ART
6. CHALLENGES FACED BY IP LAWS DUE
TO CONTEMPORARY ARTS
7. POINT OF CONFLICT B/W CONTEMPORARY ART
AND COPYRIGHT
8. CHALLENGING RELATIONSHIP BETWEEN
CONTEMPORARY ART AND INTELLECTUAL
PROPERTY
9. POSSIBLE SOLUTION TO THIS PROBLEM
10. ANALYSIS
11. CASES
12. CONTRADICTING PRINCIPLES
13. CONCLUSION

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1. ABSTRACT:

“Every rights defines law” intellectual property was created or

formed has enacted of helping and protecting the human and the

property when an individual defines or explains the definition of

intellectual property has to include

a. Patent

b. Copyright

c. Trademark

d. Design

Which helps to protect the actual fair and rights of an individual

which it can be service or goods all of these Ips are applied and

rules are formulated that need to be followed which includes Acts

like;

a. Intellectual property right act

b. Copy right act

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c. Trademark act

d. Patent act

e. Design act

Which become one of the most key on intellectual right, each

country has its own rights that guide a person to claim and protect

his rights. While searching for venture, without having the

important IP insurance there are basically too many gambling

factors included and financial backers could pull out from the open

door on this premise alone. Contemporary Art- the work of art

which has more advanced technology and created with more

advanced method that attract most of the people globally, in today

world is known as a modern art which carries different aspect of an

artist that presented his draft of work in an art. Additionally, there

are several major reasons to why contemporary art is important to

society, for instance it is a mean to express oneself as it is way to

provide social and cultural commentary.” Notwithstanding, with

appropriate IP insurance set up, it offers you and your likely

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financial backers, security and more open doors in that you will

actually want to safeguard your item against encroachment and

shield your elite right to utilize, make, sell or import Keywords:

intellectual property law, intellectual property rights, types of

intellectual property, challenges faced into contemporary arts and

intellectual property.

2.INTRODUCTION

In order to protect and encourage creation, IPRs were created. For

artists, this area of law is particularly crucial. It guarantees that

artists get the credit they deserve. Contemporary art is distinctive

in that it heavily relies on redefining and reinventing itself. It

seems sense that to give a new perspective of an old work, this

needs borrowing from earlier works. Surprisingly, some people

believe that the existence of IP laws poses a threat to artists and the

arts. Particularly in the case of contemporary art.1

Intellectual property defined as According to oxford dictionary” a

person possessed a highly developed intellect”3 According to

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phrase change organizations “are the rights given to humans over

the creations in their minds. They commonly deliver the writer an

extraordinary proper over using his/her introduction for a positive

length of time”4 According to author Sylvia Engdahl” out of

enterprise and no extra innovative works might be issued even

supposing the writer, artist, and filmmakers post their own work on

the internet, in most not enough people would be aware of them

authors to be more recognitions” According to WIPO “refers to

creations of the mind, such as inventions literary and artistic

works; designs and symbols, names and images used in

commerce.5 The different types of IP insurance are the hindrances

encompassing the business which keeps contenders from just

applying a reorder approach. The more obstructions, the harder it is

for contenders to duplicate, and it constrains them to improve and

think of their own character. For instance, licenses, copyright, and

emblem names, which empower people you bought

acknowledgment or financial gain from what they concoct or

make. By locating a few sort of concord among the pursuits of

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pioneers and the extra sizable public interest, the IP framework

plans to encourage a climate wherein innovativeness and

development can thrive. The World Intellectual Property

Organization was incepted in 1967 at Stockholm to safeguard the

IPR all through the world. Later it becomes one of the offices of

United Nation in 1974. WIPO outline functions as well as direct

different strategies concerning IPR across the globe. The financial,

social, and manageable social advancement with conservation of

bio diversities, conventional information through a balance and

viable global IP framework is fundamental objective of WIPO.

Other than this, it is mindful to orchestrate contrasts among

different nations The WIPO Program in the year 1998-99 spending

plan, were started to address the developing worries connected

with the Intellectual Property Rights, of the native information

holders. Intellectual Property led to obligations, explicitly for the

proprietor of the IP that are sure capacities to be performed by

them, corresponding to their work or items. The different

regulations that go under the ambit of Intellectual property

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umbrella didn't arise or develop together and they are as a reality,

very disparate in numerous viewpoints he foundation of WTO

because of organization of worldwide structure of exchange calls

for harmonization of a few parts of Indian Law connecting with

Intellectual Property Rights. The TRIPS understanding set least

principles for assurance for IPR privileges and furthermore put

down a point in time outline inside which nations were expected to

make changes in their regulations to consent to the necessary level

of insurance.

2.1 BACK GROUND;

Introduction of intellectual property right was due to existence of

property which were own individually were by the rights were

supposed to be protected under the law of the constitution The

intellectual property rights has been divided into four types that

explains the ownership of commercial value and the rights

provided under the rules and regulations of the given Act It may

seem like an advanced world creation, but yet it has really been

around since the improvement of civilization. Many sources pin

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the beginnings of Intellectual Property freedoms to the year 1421

when the world's first present day patent was granted to an Italian

designer. Nonetheless, as per Former Lord Justice of Appeal Robin

Jacob, the historical backdrop of Intellectual Property can be

followed back to as soon as 600 BCE. “British law become

specified in 1623. At that point, all significant businesses were

constrained by societies. Every organization held impressive

power, with the public authority investing them with the capacity

to direct what items and unrefined components could be imported

as well as how those things would be created and sold.”6 Besides,

the societies were liable for carrying all new advancements to the

commercial center, basically giving them possession and command

over innovations regardless of whether they didn't have anything to

do with their creation 3.ANCIENT PERIOD OF

INTELLECTUAL PROPERTY; In 1883, the Paris

Convention appeared. Peacefully accord through which creators

could safeguard their advancements regardless of whether they

were being utilized in different nations. Authors met up in 1886 for

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the Berne Convention which prompted insurance on a worldwide

level for all types of composed articulation as well as tunes,

drawings, shows, models, canvases and the sky is the limit from

there. Brand names started to acquire more extensive assurance in

1891 with the Madrid Agreement while the workplaces made by

the Paris and Berne Conventions in the long run joined to turn into

the United International Bureaux for the Protection of Intellectual

Property, the antecedent of the present World Intellectual Property

Organization, which is an office of the United Nations. The

following are the focus of ancient period in intellectual property a.

To safeguard their advantages regardless of the circumstances in

any other nation this was discussed during the period of Paris

convention b. To promote insurance on worldwide level in all

aspect of economic factor it was agreed in Berne convention c.

Promoted the long enjoyment that was created on the previous

convention and tried to create world intellectual property

organizations d. Both periods aimed at creating a better

environment of ownership and free workplace all over the world

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which some of the aspect that they created didn’t obtain the results

which they were expecting The change of Intellectual Property

from Divine provision to significant human ability took convoluted

diversions and pit stops. In any case, the historical backdrop of

Intellectual Property uncovers an engraving of how we advanced

as a public. It tells us of our past qualities, of our aggregate idea,

and of our wonderful ability to find some kind of harmony among

independence, society, and otherworldliness. Also we do change.

As we separate from misled convictions we acquired from our old

world, our development speeds up on all fronts. Current ways of

thinking empower us to see past the boundaries and past shadings.

The development is to bring down the extraordinary dividers

isolating us as a public.

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3.1 MODERN TIME OF INTELLECTUAL PROPERTY.

The Intellectual Property industry likewise plans to connect the holes

between areas of society. The World Intellectual Property Day in 2018

tended to the uniqueness among people in the field. This prompted world

associations combining strengthening endeavors for ladies in the field of

advancement and improvement The change of Intellectual Property from

Divine provision to significant human ability took convoluted diversions

and pit stops. Nonetheless, the historical backdrop of Intellectual

Property uncovers an engraving of how we developed as a public. It tells

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us of our past qualities, of our aggregate idea, and of our astounding

ability to find some kind of harmony among distinction, society, and

otherworldliness7 Thus, this push toward balance. Learning the

historical backdrop of Intellectual Property regulation features the worth

we put on advancements. Furthermore, this worth can be changed into

monetary worth, further more due to the past methods introduced to

maintain the individual rights it lead to development of laws and

regulations that were created in order to insure more protection of the

intellectual property in the modern time intellectual property expanded

its awareness.

There are many types of intellectual property protection. A patent is a

recognition for an invention that satisfies the criteria of global

innovation, and industrial application. IPR is essential for better

identification, planning, commercialization, rendering, and thus the

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preservation of inventions or creativity. Each industry should develop its

speciality based on its IPR policies, management style, strategies, and so

on. Currently, the pharmaceutical industry has an emerging IPR strategy,

which needs better focus and outlook in the coming era.

IPR is a strong tool, to protect the investment, time, money, and effort

invested by the inventor/creator of the IP, as it gives the inventor/creator

an exclusive right for a certain period of time for the use of its

invention/creation. Thus, IPR affects the economic development of a

country by promoting healthy competition and encouraging industrial

growth and economic growth. The present review presents a brief

description of IPR with particular emphasis on pharmaceuticals.

Meaning of intellectual Property

Intellectual Property can be defined as inventions of the mind,

innovations, literary and artistic work, symbols, names and images used

in commerce. The objective of intellectual property protection is to

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encourage the creativity of the human mind for the benefit of all and to

ensure that the benefits arising from exploiting a creation benefit the

creator. This will encourage creative activity and give investors a

reasonable return on their investment in research and development.

IP empowers individuals, enterprises, or other entities to exclude others

from the use of their creations. Intellectual Property empowers

individuals, enterprises, or other entities to exclude others from the use

of their creations without their consent.

According to Article 2 of the WIPO (World Intellectual Property

Organisation) – Central Organisation for the protection of Intellectual

Property Laws and the expert organization of the UN, “”Intellectual

Property shall include the rights relating to literary, artistic and scientific

works, inventions in all fields of human endeavour, scientific

discoveries, industrial designs, trademarks, service marks and

commercial names and designations, protection against unfair

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competition, and all the other rights resulting from intellectual activity in

the industrial, scientific, literary or scientific fields.

The usage of the test of sustainability

The test of sustainability is the method used to see the originality of the

work or art form created by an artist. This test gives importance to the

element of reimagination and recreation. The test is used to determine

the amount of work that is being recreated by the artist in question which

is potentially similar and is reimagined and recreated by the current artist

from the artwork which was seen and kept as an inspiration that was

created by another artist. If the work recreated exceeds a certain

permissible limit then the rights of the artwork eventually are of the

original artist. If in the case where the amount of similarity is not

significant and does not reflect the whole exact idea of the previous

work but the artist represents it with their unique skills in a unique and

non-similar way then the art form is accepted to be an original work of

the artist.
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But the more practical option is sure that there is no straight-jacket

formula for defining the originality of art. The method to approach such

a case is to examine the amount of originality instead of focusing on the

amount of similarity. The originality must be observed of every art form

and given a thought about the introduction of new perspective or origin

of new essence in the art piece if the piece of art form reviewed has its

unique feature which makes it different from any existing piece that

should be seen as an original work of the artist. This would differ from

artist to artist from artwork to artwork but the point is to examine each

piece with its own merits. No rigid rule can make us arrive at the correct

result.

4. DEFINING CONTEMPORARY ART.

Contemporary Art is 'the art of today.' When referencing contemporary

Art, it usually includes artwork produced during the late twentieth

century and the twenty-first century. It means art that has been produced

after modern and post-modern Art. However, it should be noted that

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contemporary art is not just art that is produced in a specific time frame

but is a lot more. Contemporary art mirrors contemporary culture and

society.

It is important to note that contemporary Art is difficult to define

because it includes such a wide variety. This art style is not uniform and

is more challenging to describe than any other genre or form of art.

Contemporary Art is thus distinguished by its very lack of a uniform

organizing principle or ideology.

The work of contemporary artists is dynamic and can be considered a

combination of materials, methods, concepts, and subjects that aim to

challenge the traditional boundaries and defy easy definitions. It is

diverse and eclectic. There is no standard style as artists approach their

work in many ways. While artists of the past were often influenced by

religion, mythology, and the demands of patrons paying them, today's

artists can be inspired by much more. The work often grows out of their

interests or expressions of self.

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Another important distinguishing factor is that this school of Art has no

single viewpoint of view or objective. It is multi-faceted. The artwork,

as mentioned before, is often reflective of the artists and therefore has a

great diversity of perspectives. It can be said that contemporary art is a

complex examination of the current day or present-day life. The themes

common to this form of Art are identity, body, technology, society,

culture, memory, time passage, and the artistic critique of sociopolitical

institutions.

In contemporary art, the viewer is as essential as the artist. The ability of

the audience to contemplate the artist's work or art pieces is as essential

as the ability of the artist to create those pieces. Audiences play an active

role in constructing meaning in the work of Art. Before, this was not like

this. It can be explained like this – "If before communicating with art

was similar to a game of squash, where a viewer was mainly a passive

wall, not it is real tennis, where the very possibility of art's existence

without a viewer is questionable."

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What Is Contemporary Art?

As of 2022, the most famous living contemporary artists might be Jasper

Johns (age 91), Gerhard Richter (age 90), and Frank Stella (age 85),

although many other talented persons could be named as well. What

is contemporary art? A contemporary art definition alludes to all-

embracing art produced from roughly the second half of the 20th century

up until modern-day art. More specifically, some art experts consider the

contemporary art movement to have begun around 1970. When it comes

to contemporary art meaning, perhaps the best way to define

contemporary art is to say it is difficult to categorize. As opposed to

other previous art movements, contemporary art is eclectic and has few

rules and boundaries.

Although the two terms are sometimes used synonymously,

contemporary art is not the same thing as modernism, as the former is

named because many of the artists are still living and working at their

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crafts. Contemporary artists often deal with main ideas such as global

issues and social concerns, and they often communicate their messages

by displaying their art so it is accessible to their art patrons.

Contemporary art entails art made in the 20th century and the 21st

century while encompassing many styles. Contemporary art came onto

the scene after the modernist and postmodernist art movements. For

instance, Banksy uses his graffiti art to reach his audience, while Anish

Kapoor explores and often blurs the lines between the architecture world

and the art world.

Contemporary artists can be found working in the fields of digital art,

Earth art, installation art, performance art, photography, street art, and

video art. Moreover, contemporary artists communicate their messages

through seven mediums that include:

 Architecture

 Film

 Literature
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  Music

 Painting

 Sculpture

 Theater

5. IMPORTANCE OF CONTEMPORARY ART;

Art in any form is paramount. There is a need to understand the

importance of contemporary art to understand the importance and need

to protect it through intellectual property rights or otherwise.

 Aesthetic value: Contemporary Art has aesthetic value. This type

of Art has the capability and capacity of eliciting a response from

the viewer. It can elicit a sense of pleasure in the viewer. Because

this form of Art is so diverse and incorporates a variety of

mediums and methods, Art in this form will likely appeal to every

person in some way or the other.

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 Relaxation and Inspiration: Viewing art can be a relaxing activity.

Art can pull people out of their racing thoughts and into the present

moment to experience it. Research shows that viewing Art can be

extremely relaxing. Another thing that contemporary Art does is

inspire. Since this form of Art aims to depict and comment on the

world, people viewing such artwork can be inspired into action. It

pushes viewers to be better versions of themselves.

 Personal expression: Contemporary Art helps individuals express

themselves. It is a means of personal expression. Contemporary

Art is so diverse that anyone can express themselves in a way that

others can observe and try to understand. This expression can be

through paintings, sculptures, performances, etc. This form of Art

is thus valuable for society as it gives a unique window into the

minds and thoughts of the artist. Just like contemporary Art is a

personal expression for the artists, it can be a personal expression

of the choices and views of the viewers or audience. Selection of

Art to decorate an office or home also helps such a person express

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 themselves and elements of their thoughts even if they have no

artistic talent.

 Cultural Commentary: Contemporary Art allows the artist to make

a commentary on the world around them. It is a way to comment

on and observe the culture and society. This can include depicting

something literally or figuratively through imagery, shapes, or

other media and further helps the artist create a narrative of their

views. Art becomes a kind of visual historical record of the life of

the present time and people's feelings. This cannot be captured in

history books, and Art gives a unique lens into the past, present,

and future.

 Thought-provoking: Contemporary Art is thought-provoking in

nature. It is communicated to the viewers through stronger visuals

than words and can trigger thoughts and emotions. Such Art can

promote an internal dialogue that can be sensational and even

transformative to a person's mindset.

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6.CHALLENGES FACED DUE TO CONTEMPORARY ARTS;

Many issues emerge when contemporary arts are registered under IP

regulations, however only a handful of them are covered below:

 Lack Of Awareness: These enterprises frequently start off with

little exposure and experience due to the growing number of

people developing their talents and starting small businesses. They

end up violating the IP rights, which leads to a costly and drawn-

out legal battle with established, large companies.

 Conflict Between The Goals Of Contemporary Art And IP

Law: The actual goal of IP law is to stop further appropriation and

recreation of the protected work. People frequently associate

reimagination with creativity in contemporary art. However, the

fundamentals of contemporary art let us understand that it entails

reshaping, giving an already existing work of art a new viewpoint.

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 Advanced Technology: IP crimes have increased in frequency as

the world has grown more digital. In situations like this, the

necessity for strict IP regulations is critical. Contemporary artists

that recreate any type of art must realize that the original artists'

rights are not violated

7. POINT OF CONFLICT B/W CONTEMPORARY ART AND

COPYRIGHT;

As is common knowledge, copyright is regarded as a valuable asset

for artists and serves a critical role in the protection of creative works.

India has laws to safeguard IP, and copyright is one type of IP. Artistic

work is one of the numerous types of works that the Copyright Act

protects. Sec n 2(c) of the Act provides a definition of artistic work.

Because it falls under the purview of the Copyright Act of 1957,

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 contemporary art is also considered to be an artistic production and is

therefore subject to the same regulations as other creative works.

However, the distinctive characteristics of contemporary art provide

problems for the copyright laws. Since the majority of current art

forms are founded on earlier works of art, the question of when an

artist's rights end arises as the fundamental issue.

The answer to this query is that all artistic endeavors draw inspiration

from some body of previously developed knowledge, concepts, or

works of art that may be related to other artists. Therefore, restricting

a contemporary artist's rights is not a solution to this issue, because

doing so would undermine the fundamental purpose of IP laws.

Does contemporary art point out the need for reform in the IP

regime

With the challenges discussed above, certain loopholes need to be

covered to make contemporary artists familiar with the IP culture and

promote the use of various protection which IP rights provide. There

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must be proper distribution of rights and also a passage of the similar

artwork being reproduced with another perspective making

contemporary art inclusive in the definition of the art forms according to

IP laws. Educating people regarding the benefits of IP and building

respect among people for the IP material is an important aspect. We

know that IP by its nature is international and hence its thefts can also be

done overseas which might often put barriers of language region etc. to

seek redressal and address the issue. Therefore, policies and strategies

with a more holistic approach should be taken which not only gives

contemporary artists an affirmation that IP is important for the

protection of their works but also provides the solution to varied

challenges and problems.

8. THE CHALLENGING RELATIONSHIP BETWEEN

CONTEMPORARY ART AND INTELLECTUAL PROPERTY

Contemporary workmanship alludes to the craftsmanship that is being

delivered in the 21st century. This incorporates performing business

exercises, the proprietary innovations and agreements that need to be

29
safeguarded from being replicated dishonestly by an outsider.

Imaginative work and advancement are the immediate method for

progress and upper hand in the current business circumstances. It should

be shielded from being replicated to guarantee development and

business development. The examination features the basic

interconnection between contemporary workmanship and saving

something similar through licensed innovation regulation The current

business climate is profoundly cutthroat. The outer changes have

compelled the entrepreneurs, supervisors, and pioneers to zero in on

imaginative techniques for creating items and arriving at clients. These

are the proprietary innovations of a business that assistance business to

guarantee treatment of cutthroat tension. This contemporary imaginative

work should be gotten with the goal that it isn't utilized by the

competitions to acquire unnecessary benefit. The standard set by the test

for inventiveness is a low one, and it isn't hard for a creator of a work to

fulfill the prerequisite of exhausted judgment, work and ability to show

that the work being referred to is truth be told original. Thusly, while

applying the trial of inventiveness to the work of Noble and Webster,

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various contemplations must be taken into account concerning previous

works and how much judgment what's more exertion it took to make the

work. While thinking about crafted by Diet Wiegman, it very well may

be seen that crafted by Noble and Webster isn't special, or then again the

first of its sort The mystery should be safeguarded through exchange

insider facts with the goal that selectiveness and classification can be

kept up with. The utilization of proprietary advantages gives the benefit

of business intensity and limiting access of outsiders. The utilization of

IP programming has turned into an indispensable piece of the

contemporary business to better view business viability Protected

innovation privileges are a chance for specialists to get inventiveness

and development to upgrade business development and position on the

lookout. Contemporary workmanship depends.

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IPR and contemporary art

While technological advancements and digitization have opened a

plethora of opportunities for young, budding artists to showcase their

works on various platforms, it has also negatively impacted the rights

that an artist may possess with respect to the artwork. Digital

platforms have made it increasingly easy to disseminate unauthorized

copies of artworks that are copyright protected. This has also led to

other issues such as the creation of unauthorized merchandise,

discrediting of original artists as well as plagiarism. Therefore, there

needs to be strong IP enforcement across technological platforms to

ensure that artworks are not stolen, or duplicated without the original

artist’s permission.

Test of substantial similarity to determine copyright infringement

for contemporary artworks.

The test of substantial similarity is a standard that is used to

determine if a party has infringed the rights of an artist. The test of

32
substantial similarity is often used to examine copyright

infringement pertaining to contemporary artworks. Primarily, the test

roots from recognizing the fact that the exclusive right to create

copies of work would be meaningless if copyright infringement was

restricted only to making exact, complete duplicates of a work. The

substantial similarity standard can be further divided into several

tests that have been formulated by courts over the years. The tests

include the Total concept and feel test, pattern test, abstraction-

filtration-comparison test, and the inverse ratio rule test.

Total concept and feel test

The origin of the total concept and feel test can be traced back to the

case of Roth Greeting Cards v. United Card Co. The total concept

and feel test evaluates the subjective examination of

outsiders/observers who are supposed to consider if the “total

concept and feel of a work” are substantially similar to the infringed

work. The total concept and feel test can be further divided into

intrinsic and extrinsic tests. As per the intrinsic test, the subjective
33
judgment of an ordinary person with respect to the works is

compared in order to analyze if infringement has occurred. Whereas,

to conduct an extrinsic test, substantial analysis of the underlying

concepts in the work is examined. In the case of BSS Studio Inc. v

Kmart Corporation (1999), it was held that a line of Halloween masks

produced by Kmart was starkly similar to a line of Halloween masks

manufactured by BSS Studio. In order to determine the extent of

infringement, the Court utilized the test of “total concept and feel”.

The total concept and feel test is also referred to as the ‘lay

observers’ test. Thus, as per this test, the benchmark for determining

infringement is dependent on an observer’s analysis pertaining to the

presence or absence of substantial similarity.

Sid & Marty Krofft Television Productions Inc. v. McDonald’s

Corp.: The genesis of the extrinsic and intrinsic test

Extrinsic and intrinsic tests have been used by several courts to

determine the extent of infringement of an artwork. However, most

often than not, the concept of extrinsic and intrinsic tests are often
34
confused with each other. However, the difference between the two

has been elucidated in the case of Sid & Marty Krofft Television

Productions Inc. v. McDonald’s Corp. In this case, it was contended

by television producers Sid and Marty Krofft that the H.R Pufnstuf

program has been infringed by advertising campaigns carried out by

McDonald’s. In order to determine infringement, episodes of H.R

Pufnstuf and McDonaldland advertisements were exhibited

simultaneously to a jury. Upon concluding the three-week trial, the

District Court held that McDonald’s had financially profited through

the usage of Krofft’s characters in their commercials. In order to

explain the difference between the two tests when it comes to

infringement cases pertaining to artworks, Judge James Marshall

Carter stated that:

“[The extrinsic test] is extrinsic because it depends not on the

responses of the trier of fact, but on specific criteria that can be

listed and analyzed. Such criteria include the type of artwork

involved, the materials used, the subject matter, and the setting for

35
the subject. Since it is an extrinsic test, analytic dissection and expert

testimony are appropriate. Moreover, this question may often be

decided as a matter of law. The determination of when there is

substantial similarity between the forms of expression is necessarily

more subtle and complex. As Judge Hand candidly observed,

“Obviously, no principle can be stated as to when an imitator has

gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’

Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics,

Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2 Cir. 1960). If

there is substantial similarity in ideas, then the trier of fact must

decide whether there is substantial similarity in the expressions of

the ideas so as to constitute infringement. The test to be applied in

determining whether there is substantial similarity in expressions

shall be labeled an intrinsic one depending on the response of the

ordinary reasonable person. See International Luggage Registry v.

Avery Products Corp., supra, 541 F.2d at 831; Harold Lloyd Corp. v.

Witwer, 65 F.2d 1, 18–19 (9 Cir. 1933). See generally Nimmer §

143.5. It is intrinsic because it does not depend on the type of

36
external criteria and analysis that marks the extrinsic test… Because

this is an intrinsic test, analytic dissection and expert testimony are

not appropriate.”

Abstraction-filtration-comparison test

The origin of the abstraction-filtration-comparison test can be traced

back to the case of Computer Associates International Inc. v Altai

Inc. This test aims to compare the elements of software components

at an abstract level. Essentially, the test comprises steps that would

help analyze the substantial similarity between elements of computer

programs.

In conclusion, while laws concerning IP enforcement with respect to

contemporary art are rather inchoate across the world, tests that have

been devised over the years (such as the test of substantial similarity)

can be applied in order to examine infringement with respect to

artworks. However, with the contemporary art industry growing at an

expedited rate, as discussed above, amendments in IPR regimes

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across the world can be expected in order to accommodate the

protection of contemporary artworks effectively.

9.POSSIBLE SOLUTION TO THIS PROBLEM

Copyright is stated to exist in original literary, dramatic, musical, and

aesthetic works under Sec 13 of the Copyright Act of 1957, however

this Act does not define originality as such. We must comprehend this

with the aid of judicial interpretations. The courts determine the level

of originality required to get copyright protection, i.e., whether or not

a particular work would be deemed original this determination can

differ from court to court

10.ANALYSIS;

Contemporary art is distinctive in that it heavily relies on redefining

and reinventing itself Naturally, in order to give a new interpretation

of the same work, this necessitates borrowing from earlier works.

This is where the tension originates. What defines the boundary

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between one artist's right and another's right? Almost all forms of art

somehow incorporate knowledge that already exists. This is not a

workable solution as a result. The rights of the artist whose work is

being requested for borrowing cannot also be disregarded. The entire

goal of IP law would be defeated in this situation.

The degree of borrowing would have to be looked at in order to

determine sustainability. When an author who has taken inspiration

from another artist creates a piece that is remarkably similar to the

work that came before it, his rights should be curtailed. The issue

with this solution is that it will necessitate significant borrowing,

which is contrary to contemporary art's enthusiasm for the idea of

offering fresh interpretations of preexisting works.

Given the issues raised above, several gaps must be filled in order to

introduce the IP culture to modern artists and encourage the use of the

many forms of protection that IP rights offer. To include

contemporary art in the definition of the art forms under IP rules,

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there must be a proper distribution of rights and a passage of the same

artwork being copied from a different angle. A crucial component is

educating people about the advantages of IP and cultivating a sense of

respect for the IP-related materials.

We are aware that because IP is transnational in nature, thefts of it can

also occur abroad, which frequently creates difficulties due to

language, geography, and other factors when trying to resolve the

problem. Therefore, policies and strategies that take a more holistic

approach need to be implemented in order to address a variety of

issues and obstacles while also providing contemporary artists with

the assurance that IP laws are crucial for the preservation of their

work

10.CASES:

 Macmillan and Co. vs. K & J Cooper, (1924) 93 LJ PC 113

 Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr,

1995 PTC (15) 278

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  Eastern Book Co. vs. D.B. Modak, (2008) 1 SCC 1

 Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)

 RG Anand v. Deluxe Films, AIR 1978 SC 1613

 Mansoob Haider v. Yashraj Films, 2014 (59) PTC 292 (Bom)

 Amar Nath Sehgal v. Union of India,117 (2005) DLT 717

 Raj Rewal v. Union of India, [CS(COMM) 3/2018, with IA Nos.

90 and 92 of 2018]

 Morrissey v. Procter & Gamble Co, 1967 U.S. App. LEXIS 5802

 Joshua Et-Hokin v. Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000

11. THE CONTRADICTING PRINCIPLES;

Contemporary Art is mainly based on the reinvention and reworking of

existing artwork. It can involve borrowing from existing pieces of Art to

bring about a new interpretation or a different reinterpretation of the

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same work of Art. On the other hand, intellectual property rights and

intellectual property law depend on protecting an author's originality. So,

the two principles are based on contradicting or contrasting in nature.

12. THE FUNDAMENTAL PROBLEMS OR ISSUES;

So the few key issues that need to be dealt with to come up with a

solution to the strained relationship between contemporary art and

intellectual property are few.

 Art is ever evolving while the law is comparatively stagnant: The

laws that protect the artwork or the artist's rights, the intellectual

property rights laws are stagnant or relatively static, whereas Art

and artistic expression are in a constant state of flux and change.

This leads to a certain amount of conflict between the two.

 Contemporary Art draws from existing works of art. It employs

technology and manipulation of existing Art and the creation of

new Art through the use of existing Art. Originality is in the idea of

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 expression and the reinterpretation of a piece of work. This raises

the question of whether contemporary Art infringes the rights of

others and to what extent such rights can be infringed for the sake

of Art.

 Intellectual property law has a uniform structure and a 'one-size-

fits-all' approach. This means that their protection schemes are

predicated on the principle of one-size-fits-all. So, whatever is

patentable or copyrightable enjoys the exact scope of protection for

a uniform period, no matter how useful or not it is.

Ownership of IPRs in Art

The general rule is that an artist will own the copyright and design rights

in any work that he or she produces. However, if someone produces an

artistic work in the course of employment, any copyright or design rights

in that work will automatically belong to the employer. If an artist is

commissioned to produce artistic work, then unless there is an

agreement to the contrary, the artist will usually own the copyright in

that artistic work; although, the commissioner will own any design

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rights. The person commissioning the work will, however, have a

limited implied license to use the work without infringing the artist’s

copyright for the purposes for which it was commissioned.

If an artist creates an artistic work jointly with another person, then each

person would own the copyright in particular parts of the work if such

contributions are distinct from each other. If such contributions are not

distinct from each other, they will jointly own the copyright in the work

and will need consent from the joint author to exploit it in any manner.

Moral Rights

Finally, an artist has certain moral rights in his or her works. The same

includes, among other things, the right to be acknowledged as the artist

when the work is displayed in public and the right to object to

derogatory treatment of the work. Moral rights are personal to the artist

and cannot be assigned or waived off; although, they need to be asserted

to take effect.

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Trademark Law and the Artist

As such, Trademark Law does not directly concern an artist. However,

trademark law becomes relevant when an artist decides to depict a

trademark in his or her artwork. A trademark is a source indicator that

distinguishes the goods of one person from another. It reflects the

goodwill of a company. Nevertheless, an artist that uses a trademark in

his or her work may have a good defense against Trademark

Infringement. For example, if the artist depicts his observations

regarding a historical event. The same issue was discussed in the United

States in the case of the University of Alabama Board of Trustees vs.

New Life Art. New Life Art, owned by artist Daniel A. Moore, who

created an artwork capturing the famous University of Alabama football

scenes, down to the colors, logos, and other trademark indicia of the

Alabama Crimson Tide football team. Although Moore had done this for

years, sometimes with a license and sometimes without, the University

decided that he needed a license to depict the University’s trademarks in

all of his artwork. Moore refused, and so the University brought a

trademark infringement action against him. The United States Court of

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Appeals for the Eleventh Circuit rejected the notion that Moore needed a

license to depict history in this manner. The court held that “trademark

protection should narrowly be construed when deciding whether an

artistically expressive work infringes a trademark.” The court concluded

that it must “carefully weigh the public interest in free expression

against the public interest in avoiding consumer confusion.”

Therefore, artistically expressive use of a trademark will not violate the

mark unless the use of the mark has no artistic relevance to the

underlying work whatsoever, or if it has some artistic relevance unless it

explicitly misleads as to the source or content of the work.

Final Words on Protecting Your Art

Artists put in a lot of skill and creativity in making their art unique.

Although it is challenging to stop every imitation of one’s art, it is not

entirely impossible. This includes:

 Using the © symbol on your artworks such as paintings, drawings,

sculptures, etc.

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  Applying for Copyright Registration (This is a good proof of the

date of creation of the art).

 Applying for a design registration for ornamental aspects of a

product with utility.

 Taking action where IPRs or moral rights (right of paternity, right

against destruction, right of integrity) of the artist are infringed.

The necessity of art and IPRs’ law co-existing and developing together

is crucial not just because it provides a statutory basis for the protection

of artists’ unique work, but also because the very basis of the IP law is

founded upon providing an incentive to innovate. By protecting artwork

for a specific period of time, the law not only helps the creator by

allowing him to gain monetary benefits, but also allows others to

improve upon and reimagine the particular artwork after the expiry of

the protection term. Thus, in this manner, a society that progresses

culturally and creatively is built with the help of the law.

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14. CONCLUSION.

The relationship between contemporary arts and intellectual property

rights is challenging. This is because the basic principles on which

these two concepts are based are contrasting and contradictory. The

principle of rethinking and reworking and drawing inspiration from

existing Art and the principle of originality of expression are in

contrast and cause problems for contemporary Art. It can be said that

the current Intellectual property system is a threat to contemporary

Art. What is required is a complete upheaval or at least upheaval in

part of the existing principles of intellectual property.

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THANK YOU

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