So who is the author?

23 Jan, 2017 Blog

One of the artworks exhibited in the Belfius Art Collection is Tombeaux — a work of a famous contemporary artist Jan Vercruysse. These are four amazingly realistic and beautiful musical instruments made in Murano glass. This artwork made me think about the concept of authorship or better about what actually defines an author?


To elaborate on Tombeaux, Jan Vercruysse came up with the idea, described that idea, yet he was not the craftsman blowing the glass. However, if we think about it, the work of a craftsman is essential for this idea to be realized. One could even rephrase that without a craftsman who is able to blow glass in the exact right way this artwork would not be possible. On the other hand, what is the skill without an exact idea?…


Another example which came to mind are the installations at Verbeke foundation — a private art site founded by art collectors Geert and Carla Verbeke-Lens. At this art site they engage a lot of volunteers who are frequently also helping with assembling and even in general with making the installations. The same question here: who is then the author — the one who conceived an idea or the one who actually realized it?


Likewise, some famous painters entrusted their apprentices with an actual painting or at least a part of it. The big master imagined the painting, made orders to his apprentices as to how it should look and signed the final result at the end. However, the actual work was realized by somebody else. Here I slightly touch upon the matter of authenticity, yet I would like to skip it for now and address it more substantially in one of the future articles.


However, coming back to the question: so what is it exactly that defines an author? What does a person need to do in order to be regarded as an author from a point of view of copyright?


This matter might seem basic and straightforward: an author is somebody who created something, right? Not really. Citing, the US Justice Thurgood Marshall’s statement in case Community for Creative non-violence vs. Reid:


“The author is the party who actually creates the work, that is, the person who translates an idea into a field, tangible expression entitled to copyright protection”.


Now, let us go back to where I started and think about Jan Vecruysse’s Tombeaux. If we base our definition of an author on the opinion of Justice Marshall, that would mean that Jan Vercruysse cannot be regarded as such. He has not actually translated the idea “into tangible expression”, somebody else did that following his instructions. So who is then the author?


An important case in the context of copyright is that of Andrien vs. Southern Ocean County Chamber of Commerce. In this case the judge concluded that: “the act of fixation is not what makes someone an author.” Further it is elaborated in the context of writers, that logically even without having performed certain mechanical tasks needed to put the material in the form distributed to the public, writers are considered to be authors of their works. Likewise, in the context of writers, before the final book gets to print there are numerous people who contribute to it. Take an editor for example. An editor frequently changes the wording, deletes certain parts, adjusts some other. Nevertheless, the writer remains an author. 


So is it about an idea? However, copyright does not protect ideas as such. Only the actual expressions of ideas can be granted copyright protection. Consequently not everyone who has an idea can qualify to be an author in the perception of copyright law. The act of communication of that original idea in a certain form becomes a pivotal element of a definition.


Talking about ideas and their realization one might try to reason along the lines of an original idea born in the mind of an author or the mental image of the final work.


Yet here consider, for instance, a pop-artist who is throwing paint on a canvas, thus creating his work. His has no mental image of the final work. He has an idea of realization rather than an idea of how it should look when realized. The question is: at which moment do you consider this pop-artist to be an author? Is it at the moment he conceived an idea of creation, at the moment he started realizing it or at the moment the final artwork was on canvas?


Elaborating further: and what if a blind pop-artist would have hired someone to realize his idea of creating a painting by throwing paint on a canvas?… Who and starting from which point would be regarded as an author in this case?


Funnily, such fundamental issue as the definition of an author lacks sufficient exploration in case law, while the existing definition used in legal acts is vague at best. Thus, the question remains: what actually defines an author?



Maria Boicova-Wynants, European Mediator in cross-border civil and commercial disputes, qualified Patent and Trademark attorney

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