Research Handbook on Art and Law
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Research Handbook on Art and Law

Edited by Jani McCutcheon and Fiona McGaughey

Featuring international contributions from leading and emerging scholars, this innovative Research Handbook presents a panoramic view of how law sees visual art, and how visual art sees law. It resists the conventional approach to art and law as inherently dissonant – one a discipline preoccupied with rationality, certainty and objectivity; the other a creative enterprise ensconced in the imaginary and inviting multiple, unique and subjective interpretations. Blending these two distinct disciplines, this unique Research Handbook bridges the gap between art and law.
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Chapter 4: Copying artistic works: copyright, aesthetics, and artistic practice

Jonathan Barrett

Abstract

This chapter argues for greater coherence between copyright, aesthetics, and artistic practice as important elements of the art world. A basic model of common sense aesthetics is constructed and compared with prevailing conceptions of artistic works in British-heritage copyright law. This model rejects, among other theories, the idea of Platonic abstracta that are discovered and cannot be destroyed, and espouses human intentionality in creating destructible artefacts. Common sense aesthetics presents a plausible ontology of artworks that can be applied in copyright law. It is not argued that artistic practice, aesthetics, and copyright can be precisely coherent. Aesthetic theory tends to lag behind some forms of artistic practice, and copyright law may never accommodate the avant-garde. Nevertheless, using the metaphor of a Venn diagram, this chapter concludes that scope exists for greater convergence of the three circles representing artworks from the perspectives of copyright law, aesthetics, and artistic practice.

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