Originality & Creativity in Contemporary Works of Art

Modern and contemporary art have inspired new perspectives and interpretations about what was, is, and what might be, both in art and society writ large. This art has provoked viewers to critique society, history and culture—the art opens up viewers to themselves and encourages interpretations of art that are personally meaningful to viewers.

Oftentimes, artists’ creative inspiration is drawn from the work of others.  Yet, if parts of an existing work are appropriated to create something new, several copyright issues may arise.  A new work adapted from an original work, a “derivative work under copyright laws,” may infringe on a copyright or exclusive license for a pre-existing work.

So, how can contemporary pieces that are substantially based on older works be created without infringing? And, can they be separately protected under copyright law as their own works? The work of Kent Monkman presents a unique case study to develop this point.

The Work of Kent Monkman: A Critical Lens for Viewing the Classics

The Met recently acquired Kent Monkman’s diptych mistikôsiwak (Wooden Boat People), which is comprised of two paintings, Welcoming the Newcomers (2019) and Resurgence of the People (2019). These contemporary pieces reinterpret various European and American works through making references to several works in the Met’s collection. And, while inspired by the Euro-American tradition of history painting, the paintings are uniquely contemporary. As the Met museum describes, Monkman’s work “brings Indigenous experience into this canon of art history” and “calls for museums to offer challenging and diverse perspectives on our shared history.”  The artist centers his work an Indigenous viewpoint that draws connections between European colonization, systemic racism, climate change, immigration and pollution.

As one example, a substantial number of the figures portrayed in Monkman’s Welcoming the Newcomers are inspired by and reference aspects of pre-existing artworks already on view at the Met. Monkman takes these figures and recasts them in the modern day to convey how the characters may fair in contemporary society. The result is a critical commentary about today’s society as well as the society portrayed in earlier works.

Welcoming the Newcomers references thirteen works of art in the galleries of the Met, including Augustus Saint-Gaudens, Hiawatha (Gallery 700), Henry Kirke Brown, Choosing of the Arrow (Gallery 760), and Henry Inman, Hauyne Hudjihini (Gallery 756), among others. Resurgence of the People is inspired by five other references to artworks at the Met, including Emanuel Leutze, Washington Crossing the Delaware (Gallery 760), Eugene Delacroix, The Matchez (Gallery 801), and others.

Yet, how does copyright law view this practice?  Has Monkman simply appropriated figures from other artists in a way that infringes on their legal rights? Or, does he add sufficient originality to justify a finding of no infringement, and indeed, establish a separate and protectable legal right for his work?

Policy & Protection: A Bias in Favor of Permissive Expression

The line between creative and copied can be thin. To understand this better, it may be useful to consider why copyright laws were enacted. Some have argued that copyright law exists to provide exclusive rights to artists and protect their economic incentives to create art. However, the Intellectual Property Clause in the U.S Constitution states that the purpose of Congress’s powers to create legal rights like copyright is to promote the progress of science and the useful arts. This suggests that copyright laws are designed to promote useful artsto benefit the public, not to create a private economic benefit for artists.

The Basics of Copyright Protection

In general, for a work to be copyrightable, the work must be: an original creation, fixed in a tangible medium, and embracing a copyrightable subject matter.  17 U.S.C. § 102. Under copyright law, ideas are not protectable, but an artist’s unique expression of an idea can be protected.  Id.  The bar on protection for ideas ensures that future artists are not blocked from creating works making use of the same ideas. Thus, new works of art that are inspired by the past, such as works that portray the same historical event, can each be protected, so long as either of their expressions is original.  A.A. Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980).

Copyright law distinguishes original works from derivative works, the latter of which incorporates aspects of an existing work.  Monkman’s works, for example, are clearly derivative works, because they make reference to and recombine elements from several pre-existing art pieces.  Derivative works can be separately copyrightable from pre-existing works.  17 U.S.C. 103(a).

Using Welcoming the Newcomers as a case study for contemporary works that recombine elements of existing works, the remainder of this blog post will analyze whether Monkman’s work potentially infringes upon pre-existing artists’ works and whether the painting itself may be copyrightable.

The Required Elements: Fixation and Originality

Fixation requires for a work to be fixed in a tangible medium of expression.  Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870 (3d Cir. 1982).  Monkman’s artwork is undisputedly fixed in a tangible medium, as his paintings are fixed on the canvases that he painted.

Regarding the work’s originality, the test for originality has a low threshold: “[a]ll that is needed . . . is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’” Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951).  A derivative work  must contain an original contribution not present in the underlying work of art and be more than a mere copy of the pre-existing work, but besides this, originality is no more rigorous for a derivative work than pre-existing work. Daniel Schrock v. Learning Curve International, Inc. 586 F.3d 513 (7th Cir. 2009).

Monkman’s work, then, would clearly meet the originality requirement. His figures and the setting for his art pieces make reference to pre-existing works, but the artist’s style, color, and recasting of figures with new intentionality to challenge assumptions about race and power leads to a new representation and message for the viewer. This is all more than enough to pass the “merely trivial” threshold for originality. And, the artist not only combines aspects of several artworks but also creates a distinct representation of these elements, thus creates an independent work. The figures are not merely copied but have been transformed by the artist to adjust them to a contemporary setting.

A Spark of Creativity: Is it Enough?

Who decides what amount of artistic input is creative enough to satisfy the originality requirements? Assessing creativity is a tricky and challenging task due to the inherent subjectiveness of art. Copyright law, by contrast to patent law, does not require novelty.  Sheldon v. Metro-Goldwyn Pictures Corporation, 81 F.2d 49 (2d Cir. 1936). The low threshold is set to ensure artists have wide room to operate and create, without needing to research how closely their works resemble existing works.  It avoids any chilling effect from artists being unsure about the bounds of legal protection and encourages a large number of works to be created.

To determine if the threshold level of creativity has been met, a court may consider two factors: the artist’s intent and aspects of the artwork itself. Firstly, Monkman artistic intent is not to simply copy great artworks but to create a new commentary.  He does so through introducing figures from pre-existing artworks to the modern period and linking them to various social and political issues such as immigration and climate change.  Secondly, Monkman’s work itself is not an exact copy of the pre-existing figures from earlier works. Each character he depicts reflects his own style as an artist and creative choices regarding how to adjust the subject to the modern period. Ultimately, his works evoke a different, more critical sentiment with the viewer than the original works.  Thus, he can meet the necessary level of creativity to seek protection for his work.

Permission to Create, Please?

If the prior existing artwork is in the public domain, no permission would be necessary for the artist to create a derivative work using elements of that work or to secure a copyright. Daniel Schrock v. Learning Curve International, Inc. 586 F.3d 513 (7th Cir. 2009).  Otherwise, permission may be necessary for a derivative work to be copyrightable and avoid infringement. Monkman would have good arguments that his work does not infringe the pre-existing works he references, thus no permission would be necessary.  For example—if Monkman uses only scène à faire, or, elements common to a genre, he would not infringe.  Thus, by recombining and recasting certain common tropes from historical paintings, he can avoid infringement.  Or, his artwork may considered transformative and fall within the fair use exception. Monkman has a strong fair use argument because he only uses a limited amount of material from pre-existing works and makes many additions and re-combinations to the works that he repurposes.

It should be noted that Monkman’s copyright for his derivative work would only cover the additions, changes, or other new material that he adds to his work, not separately copyrightable elements that he incorporates. So, Monkman would not have any copyright over the pre-existing figures that he used in the paintings, but he could copyright modifications that he makes to these figures.  

Conclusion

But, Monkman’s expression would not bar another artist who also creates derivative works using the same sample elements from older paintings if the two works are not substantially similar in expression.  Just the idea to remix and remodel aspects of older, public domain artworks would be an idea, not expression.  Again, it is the purpose of copyright law to permit broad, permissive expression, not a private economic gain for a limited group of artists.