Protectable “Art”: Urinals, Bananas, and Shredders
Richard Chused
Article

  The full text of this Article may be found here.

31 Fordham Intell. Prop. Media & Ent. L.J. 166 (2020).

Article by Richard Chused*

ABSTRACT

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reative souls have long played with our imaginations, as well as our tastes, about what art may be. The resulting absurdist, dada, and everyday object art forces us to step back and ask a few intellectual property questions about what this art has done, undone, or reconstructed in the copyright world. The Copyright Act grants protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This Article explores how pranksterism, eccentricity, repackaging of ordinary objects, and decay can be subsumed within legal categories of copyright law like originality, fixation, protectable two- or three-dimensional art, and moral rights.

Taking concepts from the history of art, from modern notions of visual perception, and from recent developments in the understanding of random motion, this Article unravels copyright conundrums involving artistic use of everyday objects. Three artists are highlighted: Marcel Duchamp, who created art by placing a urinal on a pedestal; Maurizio Cattelan, who recently hung slowly decaying bananas at an exhibition; and Banksy, who inserted a shredder in a composition’s frame and activated it at an auction. Comparing the work of these three provocative artists with a variety of other well-known creative souls leads to the conclusion that Duchamp’s urinal, Cattelan’s creation of instructions for taping a banana to a wall, and Banksy’s integration of a shredder into the frame of a two-dimensional work are fully protected as copyrightable works.

* Professor of Law, New York Law School. I’d like to thank New York Law School for its continuous support of my writing endeavors. Thanks also to Jacob Sherkow, my one-time colleague now on the faculty at the University of Illinois, who read an earlier draft and passed along some fascinating comments. The same kudos go to my present colleague Richard Sherwin, a scholar always brimming with provocative and interesting questions. And of course, my artist wife Elizabeth Langer, who continually presents and provokes fascinating questions about the content and nature of aesthetic experience.