Copyright Protection for Transitory or Ephemeral Works: Going Beyond the Photographic Record

Last month, I discussed the ephemeral art of US sand sculptor Jim Denevan, noting that the simplest way for Denevan to protect his monumental sand designs (if he wished to), was by photographing them. That is what Denevan has done on occasion, through his son, drone photographer Brighton Denevan, who took the stunning photos of the work Denevan père executed at Chesterman Beach in Tofino, BC, earlier this year. That work was obliterated after 9 days when a king tide came in. But what if Denevan hadn’t photographed the work? Could it still have been protected by copyright given that it was “transitory” and not “fixed”?

Unlike in the US, UK copyright law does not explicitly require fixation or permanence for artistic works (as opposed to literary, dramatic, or musical works, where it is required). A recent case in the UK (Islestarr Holdings Ltd v Aldi Stores Ltd) illustrates the tricky role of fixation when deciding infringement. The case involved a design embossed into cosmetic make-up powder, which had been copied by the alleged infringer. Although the embossed powder compact design disappeared when used (i.e. it was transitory), the court nonetheless ruled that the product was sufficiently fixed even if not “permanent” because the embossed powder was based on a fixed design. As noted in the Kluwer Copyright Blog;

“The decision shows that with artistic copyright (in the UK) the emphasis is on the content conveyed by the work as opposed to the medium on which it is fixed.  Provided the design of the artistic work is recorded in some form, the physical manifestation of the design will, in principle, be entitled to artistic copyright regardless of its permanence.  In the Islestarr decision it was relatively straightforward to establish fixation from earlier design drawings…”,

Jim Denevan’s sand installation took place in Canada which also does not have an explicit requirement for fixation in its copyright law, (other than for content transmitted by telecommunications), unlike the US. However, according to Canadian case law, to be protected a work must be expressed to some extent in some material form, capable of identification and having a more or less permanent endurance. Perhaps the designs Denevan used to create his work were in a tangible form, allowing him to assert copyright based on the designs before they were carved into the sands of Chesterman Beach. But perhaps he simply had the design in his head and executed it without preparing a physical copy. In that case, it would seem that copyright would have to depend on an image (such as a photograph) of the non-permanent object if the work is to be protected.

The question of whether a design qualifies for protection regardless of the permanence of the expression of the design, as in the Islestarr case, is interesting to explore. In Denevan’s view, his instructions on how to assemble a work (such as his “Angle of Repose” sculpture at DesertX 2022), are protectable by copyright. In my discussion with him, he pointed out the case of the American conceptual artist Sol LeWitt. LeWitt was known for myriad variations in drawing lines onto walls. His creation was the set of instructions on how to execute the lines, although each artist—usually his assistants–following these instructions would produce something slightly different each time. In LeWitt’s thinking, the instructions were the copyrightable form; the actual physical manifestation was secondary.

I remember visiting the Art Gallery of Ontario a few years ago when an installation by the Chinese artist Ai Weiwei, titled 90 Tons of Steel, was being set up. The work itself was a collection of straightened rebar taken from schools in Sichuan Province that had been destroyed by the 2008 earthquake. Ai had extracted the steel rods, straightened them, and then assembled them into a ripple pattern resembling a seismic wave. The work was a criticism of the Chinese government and local officials for allowing shoddy construction in schools, resulting in the deaths of many students. As the curator was assembling the work, which as I recall had just arrived from New York, I asked him how he could ensure the design was faithful to Ai’s conception. (Ai was not in Toronto; at the time he was under house arrest in China).

The curator said he was following Ai’s instructions but conceded that the layout in Toronto would inevitably differ in some respects—since the bars were not interlocked in any way– from the display in Indianapolis, or Boston, or wherever the exhibition was going next. Yet no-one would dispute that the work was Ai’s and that it was protected by copyright.  The work was clearly transitory or ephemeral since after its run in Toronto, it would be packed up and shipped to another art museum and be laid out again in a different setting. In effect it was Ai’s design as translated through his instructions that was the heart of the work, and which is presumably protected by copyright, rather than the physical expression of the work wherever it may appear. In similar fashion, recorded verbal instructions for assembly of an artwork could be argued to be protected by copyright even though the resulting work might not be fixed.

While it may seem a stretch to argue that a sand sculpture could be copyrighted if it was the expression of an original, recorded design, this happens in other art forms where an ephemeral or transitory expression can be protected by copyright if the instructions are fixed. Choreography is a good example. There is no question that dance choreography is protectable; there are numerous examples. The form of fixation can be a video recording or photograph, but it can also be through dance notation or textual descriptions. The actual performance, which could itself be protectable through the performers’ rights, is unlikely to be an exact replica of the dance each time it is performed, giving it a transitory nature. Yet it is protectable under copyright, as explained by this article in Dance Magazine.

So, while a photograph by the author (or, in the US, on behalf of the author as a work for hire) is a good way to ensure that a transitory work can be protected by copyright, it is not the only way to accomplish this.

© Hugh Stephens, 2022. All Rights Reserved.

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