The challenging relationship between contemporary art and copyright
Authors Matthew Sawyer & Sadulla Karjiker
Affiliations: LLM student, Stellenbosch University; Anton Mostert Chair of Intellectual Property Law, Stellenbosch University
Source: South African Law Journal, Volume 136 Issue 4, p. 650-675
This article seeks to address the current wording of the definition of ‘artistic work’ in the Copyright Act 98 of 1978. It is argued that such wording has failed to aid courts in interpreting it in a way that allows for a broadening of its scope so as to include new art forms — most importantly, for this article, multimedia installations. Analysis of the Copyright Act’s definition of ‘artistic work’ is applied to four contemporary and prominent multimedia installation artworks to determine whether such creations would fall within this definition. The outcome of this analysis shows that, although certain multimedia installation creations are provided protection under the current definition, there are artworks that do not satisfy the requirements under this definition. It is thus proposed in this article that certain amendments should be made to the Copyright Act that will afford such excluded artistic works copyright protection. Finally, this article conducts an analysis of the possible adverse effects that could arise should such amendments be effected to the wording of the Copyright Act in terms of the requirements of materiality and originality. Through the application of these two requirements to further examples of multimedia installation artworks, the conclusion is reached that these requirements would not render the proposed amendments superfluous or problematic.