What is Art? (Under Copyright Law)

We made this chart to help us think about works of art that are entitled to copyright and why. It is a work in progress:   “What is Art” The Chart (2017)

Most law is a balancing act among different ideas – copyright is no different. Copyright seeks to get people to make things. But the ways it encourages creation are based on two opposing ideas of why people create. First, people will express themselves using some divine inspiration. Second, people will express themselves using the inspirations of the expressions of other people. These two ideas are the seeds of copyright law.

Your dominance over your expression lasts only for a limited period of time. At the end of your copyright, other people get to use it as source material for their own creation. Your ability to keep people from using your work does not include stopping people from commenting on your work or reporting on it.

To encourage you to create, and to encourage other people to create, you get dominance – in use and exploitation – over your expressions. But with serious limitations. First, your expression has to be sufficiently “creative.” That is, it must contain something that springs essentially from you – otherwise, it isn’t your work and you aren’t entitled to protect it. Second, copyright does not apply to ideas or to utilitarian things (because that’s covered by patent law).

Courts and scholars frequently say that copyright law makes no judgment about art (but that is often a little bit of fiction). Art is copyrightable “Art” if it was created with a degree of “creativity” that is more than minimal, and it is an “artistic work of craftsmanship.” The opposite of “creative” is “generic” – something that is obvious, inevitable, or commonplace. Sometimes, a commonplace work or an arrangement of common shapes gets copyright protection if there is evidence that the work resulted from the artist’s judgment or choices rather than circumstance.

An “artistic work of craftsmanship” is something that is purely there for art or decoration. The opposite of “artistic” is utilitarian (something functional).

In determining what works are copyrightable, the people who make these decisions – the copyright office and judges – frequently evaluate the artistic-ness of the work. As a result, some works that are copyrightable art may not be art to you and some things that are art to you and me may not be copyrightable art to judges.