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Tang, Xiyin --- "Copyright in the expanded field: on l and art and other new mediums" [2018] ELECD 861; in Bonadio, Enrico; Lucchi, Nicola (eds), "Non-Conventional Copyright" (Edward Elgar Publishing, 2018) 23

Book Title: Non-Conventional Copyright

Editor(s): Bonadio, Enrico; Lucchi, Nicola

Publisher: Edward Elgar Publishing

ISBN: 9781786434067

Section: Chapter 1

Section Title: Copyright in the expanded field: on l and art and other new mediums

Author(s): Tang, Xiyin

Number of pages: 21

Abstract/Description:

Intellectual property (IP) 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 chapter 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 chapter 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 wider level, this chapter 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.