Damien Hirst and the topic of copyright law are familiar with one another. Since the beginning of his career, the artist has been surrounded by claims of plagiarism, as well as pursuing claims himself.
In a recent filmed conversation with Sir Peter Blake, Hirst commented that “all my ideas are stolen anyway”.
It may surprise some to hear that stealing ideas alone does not in itself give the aggrieved creator of the ideas a right of action in law. The starting point is that you cannot copyright an idea, but you can copyright the expression of an idea.
This was considered in the case of Donoghue v Allied Newspapers Limited (1938). The judge concluded that “if the idea, however original, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture, then there is no such thing as copyright at all”.
How this works in practice can be observed in relation to two well-known Hirst works. With the creation of The Physical Impossibility of Death in the Mind of Someone Living – a tiger shark preserved in a tank of formaldehyde – Hirst incurred the wrath of certain Stuckist artists, who pointed out a shark previously exhibited in a hardware shop’s window. There were many similarities between the two works but no claim was pursued. This was more a case of the ‘theft’ of ‘an idea’ rather than the expression of it.
Hirst came far closer to copying the expression of an idea with his 20ft sculpture Hymn.
Hull-based toy company Humbrol claimed the £1m bronze was a direct copy of its Young Scientist Anatomy Set, the design for which was created by artist Norman Emms. Hirst had claimed he was merely “inspired” by the set, but an undisclosed sum was paid in settlement.
As a matter of law, if someone comes up with a piece of artwork independently, without ever seeing or hearing of the original piece, this is not plagiarism; Hirst’s admission that he had seen his son playing with Emms’ anatomy set meant this was not applicable.
The tentacles of copyright do stretch further than modern-day works. Although copyright expires 70 years after the death of the creator of the work, a photograph of an Old Master or antiquity could be the subject of infringement.
In 2009 a student at the University of California downloaded 3000 images from the National Portrait Gallery website. All of the paintings were out of copyright and therefore in the public domain. But the gallery claimed that the photographic reproductions of the works in its collections were copyright works in their own right.
“You cannot copyright an idea, but you can copyright the expression of an idea
Nonetheless, present-day plagiarists get off rather lightly in comparison with those who tried to replicate the works of Albrecht Dürer.
Enraged by another artist, Mark Antonio Raimondi, copying his engravings, Dürer published the following warning notice in 1511: “Think not rashly to lay your feverish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximilian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen!
“And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger.”
Milton Silverman is senior commercial dispute resolution partner at Streathers Solicitors LLP, London.