Copyright in the Expanded Field
25 Pages Posted: 26 Mar 2013 Last revised: 24 Feb 2021
Date Written: March 25, 2013
Intellectual property law and the art forms it is meant to protect are expanding. In our information age, artists hoping to assert their rights frequently assert a combination of trademark, copyright, and right of publicity or moral rights claims in order to maximize their chances of success. This Article looks beyond IP law to some of its more unlikely complements — tort and property law — as a viable means of redress for artists who may be ineligible for copyright protection. Specifically, recent cases involving a specific form of hybrid art — land art, or “site specific art” — have determinedly stripped artists of either their moral rights or copyright claims. Thus I suggest looking to the laws of trespass and nuisance as new ways of thinking about the same problem: How do we balance public rights in our shared artworks with private rights of control? Surprisingly, this Article suggests that applying nuisance law’s balancing test has much in common with the four-factor balancing test of copyright’s fair use doctrine. On a greater level, this Article hopes to encourage the ongoing trend of creative ways of thinking about and asserting artistic rights when traditional copyright claims may not be feasible or successful.
Keywords: fair use, nuisance, trespass, real property, copyright, moral rights, visual artists rights act of 1990
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