Guest Book Review: Art and Copyright

This book review of Art and Copyright by Simon Stokes (Partner at Blake Morgan) is kindly provided to you by Alexander Herman, Assistant Director, at the Institute of Art and Law. Alexander teaches regularly on copyright, including as part of the Art, Business and Law LLM at the Centre for Commercial Law Studies at Queen Mary University of London, a Masters programme he helped found and now co-directs. On 30 September, his new book Restitution: The Return of Cultural Artefacts will be published by Lund Humphries. Here is what Alexander has to say:

It was a delight to learn last year that Simon Stokes, copyright solicitor at Blake Morgan in London, was working on a third edition of his eminently useful Art and Copyright. The book was released this year by Hart Publishing, an imprint of Bloomsbury, and one does not need to progress deep into the book to appreciate the wisdom behind the revision. 

 

Much has changed in the world of copyright since the last edition was published in 2012. There has been increasing harmonisation and standardisation at the EU level and a growing assertion by the CJEU to establish shared rules for interpretation to apply uniformly across the territory. We have witnessed the impact of decisions like Infopaq, Spiegel Online and Svensson and – perhaps more germane to the arts and creative sectors – those of Painer, Deckmyn and Pelham. And then of course came Brexit, which meant that the UK would no longer form part of the EU’s shared copyright landscape, with the potential for greater divergence in the future should British judges begin to deviate from the above-referenced CJEU case law.

On a domestic level, plenty has been introduced in the UK over the past decade to change the state of play, with implications for both visual artists and the museum sector. In 2014, a total of nine regulations came into force, each of which presented a significant change to UK copyright law. In the area of exceptions, new fair dealing purposes were added for quotation (a significant expansion on the existing exception for criticism and review), as well as for caricature, parody and pastiche. These additions can serve as a boon to artists, now seemingly more capable than before of reproducing works by third parties without consent for the purposes of collage, parodic statements, mash-ups and appropriation art. For museums, there are now exceptions for digital displays of collection works on dedicated terminals and, in certain situations, for making preservation and replacement copies. And of course there are now regimes for managing orphan works: one in the UK based on licensing and another in the EU benefiting cultural heritage institutions through a copyright exception.

It has been a fast-changing world and it is often difficult to keep track of developments. This is one of the great benefits of Stokes’s new edition: it serves as a single go-to manual for those working in the area, whether artists, arts managers, museum professionals or lawyers. It is a compact and no-nonsense guide to the often complex interrelations between the visual arts and intellectual property law. And despite what the title would have us believe, the coverage helpfully stretches beyond mere copyright to include topics such as trade marks, domain names, passing off and publicity rights.

One of the strengths of this edition is its consideration of new and non-traditional forms of art, such as ready-mades, street art, bio-art and land art. As someone who has recently supervised a Masters dissertation on ecological art, the sub-chapter on ‘land art’ was a useful port of call when considering this relatively new and often challenging topic. The book also offered useful analysis on digital art and the treatment of art in the online world. This is of course an area of Stokes’s great knowledge, owing to his practice as an IP lawyer with a long list of tech clients, as well as the research and analysis evident from his last book for Hart, Digital Copyright: Law and Practice (2019).

Business cat by Jamie Anderson

At times it can be a challenge to fit into a single manual all that is novel and newfangled, while continuing to provide the topic’s usual cornerstones. But Stokes finds the balance admirably, providing enough of a window into new areas for those with an interest while not dwelling on recondite areas, as others (myself included) would tend to do. At one or two points new material was placed in footnotes, whereas it might have been useful to engage with it more directly in the body of the text itself. For instance, the passage on copyright exceptions (chapter 3.2.9) could have been streamlined a little more for ease of reference, as the reader was often required to flit between text and footnotes rather frequently. But this in no way detracted from the content itself nor from the broader structural consistency of this finely crafted book.

The new edition of Stokes’s classic work makes a welcome addition to any library. It brings into play all the developments of the past decade, overlaid neatly onto the bedrock of the two earlier editions. It is easily accessible for anyone working in the art sector without a legal background, whose work nevertheless requires an understanding of the essential elements of IP. This would include museum registrars, curators, archivists, contemporary art gallery managers, art agents, art dealers and artwork photographers. Yet there is enough legal depth to satisfy the lawyer as well. And let us not forget the artists – with new art forms and digital reproduction now so prevalent, there is no better time for creators to familiarise themselves with the rights they hold in works, as well as any limitations on those rights. This book will help them through.

Details:

Published by Hart Publishing, March 2021

Format: Available as Hardback and ebook 

Edition: 3rd

Extent: 304

ISBN: 9781509934256

Dimensions: 234 x 156 mm

RRP: £55.00/ Online price:£49.50