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Copyright law



The concept of originality in art may be discussed in several different meanings varying from

the technic of execution of each work of art. Following the writings of Walter Benjamin in ‘The Work of Art in the Age of Mechanical Reproduction’ where he discusses his thoughts on media and culture in general, he emphasizes that the presence of the original is the prerequisite to the concept of authenticity (Benjamin 1992: p. 214).


He provides the understanding that the originality is determined by the embodiment of the idea and concept into a creation that materialize in a physical embodiment of the object. In these conditions this embodiment of the idea then becomes what we could determine as the ‘original’ object with all its characteristic and condition. Benjamin maintains the idea that despite the different technological means that the work of art can be viewed, only the physical realm justifies the concept of authenticity of one object rather than the presence of it through other means.


Since our evaluation and appreciation of each work of art is undoubtedly mediated by the knowledge of external facts and in many cases the historical background of a particular work, the quality of being original is one of the conditions leading to a correct judgement on art.


According to the judge in University of London Press Limited v. University Tutorial Press Limited considering what was meant by ‘original’ in the context of a literary work. The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright acts are not concerned with the originality of ideas but with the expression of thought, and, in the case of a ‘literary work’, with the expression of thought in print or writing. The originality which is required related to the expression of the thought. But the Act (Copyright Act 1911) does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author.


According to Rosalind Krauss, the postmodernist critic in her essay ‘The Originality of the Avant-Garde’ the idea of the artist as someone who is original is a distinguishing feature of the avant-garde, something constant in an art movement. She states that artist is original not

because of rebelling against the tradition, not because he would want to reject his past, but because of the ability of a constant renewal. According to Krauss, the avant-garde understands the concept of originality quite literally as a return to origin – ‘a beginning from

ground zero, ‘a birth’ – where the point of ‘origin’ is nothing more that the artist’s own sense

of ‘self’ (Krauss 1986: p156).


Frank Sibley (1985) equates originality with ‘novelty’ and analyzes several senses of originality in terms of the properties of the work, i.e. that it ‘differ(s) from anything previously existing in relevant ways.’ Sibley states that originality is sometimes used to refer to the circumstances of creation, as ‘uncopied, unplagiarized, (the artist’s) own invention without it being …. qualitatively different.’


However, Harold Osborne (1979) rejects the equation of originality with ‘novelty’. ‘There can be originality, which is sheer idiosyncrasy, novelty which verges upon idiocy, newness that is so strange as to be devoid of any apprehensible meaning or power of communication’.


According to the U.S. Supreme Court in 1991, Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the term ‘original’, ‘means only that the work was independently created by

the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity’.


The court agrees that:

Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. And when we speak about such arts as music or photography it is merely difficult to determine what should be called as ‘originality’.


The Sculpture Copyright Act 1814 first introduced the originality requirement into UK law,

which was reiterated in the Fine Arts Copyright Act 1862. In 1886 the first international

Berne Copyright Convention spoke of ‘intellectual creations’ rather than ‘original works’ and

allowed each country’s legislature to decide its own statutory definition therefore the

originality requirement is not defined by statute law, it is up to the judge to interpret and

apply to the facts of each particular case in many countries, the UK included. Under the

Copyright, Designs and Patents Act 1988, authors of ‘original’ artistic work automatically

acquire copyright regardless of the authors skill in the execution of the work, judgement or

the quality of the subject matter. Saying that, a child’s painting of the visualization from his

imagination would directly acquire copyright as an ‘original’ artistic work. Same Act applies

also to original photographic works; however, it is not always whether a photograph of a

painting can be sufficiently original – the image it reflects is a product of the skill and

execution of the original painter. With photography there can be three possible ways to gain

the originality of the work. First, there may be originality which does not depend on creation

of the scene or object to be photographed or anything remarkable about its capture, and which resides in angle of shot, light, shade, use of filters, applied visual effects. Secondly, there may be a creation of the scene or subject to be photographed such as an arrangement or posing of a group and thirdly – a person may create a worthwhile photograph by being at the right time and at the right place therefore being able to caption something that can be rarely seen, therefore visualizing an ‘original’ moment – a tornado, a storm wave in the sea, etc.


The Judge at The Bridgeman Art Library Ltd. V. Corel Corporation (February 26, 1999, US

District Court, Southern District of New York; Lewis A. Kaplan) made clear that:


There is little doubt that many photographs, probably the overwhelming majority,

reflect at least the modest amount of originality required for copyright protection.

Elements of originality …. May include posing the subjects, lighting, angle, selection

of film and camera, evoking the desired expression, and almost any other variant

involved. But ‘slavish copying’, although doubtless requiring technical skill and

effort, does not qualify. As the Supreme Court indicated in Feist*, ‘sweat of the brow’

alone is not the ‘creative spark’ which is the sine qua non of originality.

 Feist Publication v. Rural Telephone 499 US 340 (1991).


Like John Hoaglund in his essay ‘Originality and Aesthetic Value’ (1976) understands

originality in terms of the uniquely creative activity of the artist by identifying ‘three related

senses of ‘originality’ – authenticity, uniqueness, and creativity.’

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