Why Art Does Not Need Copyright

64 Pages Posted: 24 Jul 2018  

Amy Adler

New York University School of Law

Date Written: March 1, 2018

Abstract

This Article explores the escalating battles between visual art and copyright law in order to upend the most basic assumptions on which copyright protection for visual art is grounded. It is a foundational premise of intellectual property law that copyright is necessary for the “progress” of the arts. This Article demonstrates that this premise is flatly wrong when it comes to visual art. United States courts and scholars have come to understand copyright law almost universally in utilitarian terms; by this account, the reason we grant copyright to authors is to give them economic incentives to create culturally valuable works. But legal scholars have failed to recognize that their paradigm makes no sense when applied to visual art, one of the highest profile and most hotly contested fields in intellectual property law. This is because scholars have failed to take into account the single most important value for participants in the art market: the norm of authenticity, which renders copyright law superfluous. The fundamental assumption of copyright law — that the copy poses a threat to creativity — is simply not true for visual art. By juxtaposing copyright theory with the reality of the art market, this Article shows why copyright law does not — and cannot — incentivize the creation of visual art. In fact, copyright law, rather than being necessary for art’s flourishing, actually impedes it.

Keywords: Intellectual property, copyright, moral rights, art law, art market, Richard Prince, authenticity, utilitarianism, fair use

JEL Classification: K00

Suggested Citation

Adler, Amy, Why Art Does Not Need Copyright (March 1, 2018). George Washington Law Review, Vol. 86, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3206830

Amy M. Adler (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 314
New York, NY 10012-1099
United States
212-998-6645 (Phone)
212-995-4341 (Fax)

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