How Marcel Duchamp Destroyed Our Copyright System

The arguments about copyright law have missed one important issue: that copyright applies ONLY to artistic and scientific works.

Copyright originally stems from the idea of encouraging useful and important works to be contributed to society by their creators. Copyright laws created a limited time period where the artist or scientist hold exclusive rights to their creations. During this time period, they collect money from others who want to buy or rent their works. After this time period, the work enters into the public domain.

For example, the U.S. Constitution reads:

[Congress has the power to create laws ...] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

All other countries use similar language.

The idea is straightforward: if the public will benefit by having your work, it is worthwhile encouraging you to produce it and make it available.

In order to receive copyright protection, you used to have to register your creation with the Register of Copyrights, for a fee. This changed in 1989 with the Berne Convention.

The Berne Convention essentially made everything copyrighted, with or without copyright registration or even copyright notice. Yet, even here, the language continued to imply that these laws apply only to works of artistic or scientific merit:

The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

"... every production in the literary, scientific and artistic domain." A hundred years ago, anyone could have told you that a "production in the literary, scientific and artistic domain" meant something considered a work of literature, art, or science. After all, copyright law was created so that this "production" will be released into the public domain so as to benefit the public, overall. A grocery list wouldn't get this sort of protection one could reasonably assume. Nor a "discovery" of something that already exists.

But the world changed about a hundred years ago, because of a guy named Marcel Duchamp, and many others like him. Marcel shook the artistic world by popularizing the ideas of "Conceptual Art" and "Found Art". By doing so, he destroyed the idea of copyright.

Conceptual Art is the idea that art requires no skill other than deciding what goes where. After deciding this, anyone with any skills whatsoever can reproduce the item. Found Art is the idea that anything an artist declares as art is art, even if the artist has done nothing more than identify it as such.

Both of these ideas are illustrated by Marcel's iconic Fountain, a presentation of a urinal on it's side with his handwriting on it. The idea was to deconstruct art altogether; to kill it's basic meaning. It succeeded. Fountain was voted the most influential artistic work of the twentieth century in one 2004 poll.

The consequences of this piece on the art world were tremendous; in my very humble opinion, quite negatively so. But the consequences on the laws of copyright have never really been examined.

For if, originally, a work in the artistic or scientific field originally meant something with skill, merit, or importance, now it meant, quite literally, anything at all. It is not, after all, the province of lawyers and judges to decide what is or isn't art.

Marcel Duchamp's legacy is that all of the intended meanings of "authors and inventors" and "writings and discoveries" in the laws were lost. Now, this simply means: anyone and anything. Preserving the words "production in the literary, scientific and artistic domain" in the Berne Convention and the definitions of protected items within U.S. copyright law are now so much waste of ink; anything and everything is now protected, simply because the meaning of art has been destroyed. It may still say in the copyright laws that only "works of fine, graphic, and applied art" are protected, but if anything is art, what does this mean?

A grocery list - who's to say it isn't fine art? A line drawn on the sand - graphic art? The discovery of something that already exists - who's to say that the discovery isn't artistic, and not simply the writing about it, which is what the original wording says?

That's how we got to where we are now: people copyrighting their name, cooks trying to copyright recipes, every sentence written now automatically copyrighted. Regardless of whether or not the public will benefit from this "creation" once it becomes public domain.

Yehuda