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 8: Untangling copyright and trade marks in art and advertising

Amanda Scardamaglia


This chapter examines the way copyright law and trademark law evolved historically to distinguish between art and advertising and the subject matter capable of protection under both systems – in order to decouple copyright and trademark doctrine. It does this by charting the evolution of advertising in the 19th century, which morphed from text-based ads and labels – to high art – to the brand name. This chapter focuses on the way the law has treated these artefacts through time, and how this treatment has framed the relationship between art and advertising. The history of advertising is directly connected to the evolution of print technologies of the time. As such, this chapter starts with an examination of the earliest forms of advertising, as facilitated by the printing press. The chapter then charts the dramatic shift in the styling of these graphical expressions as brought about by the invention of lithography. The implications for the copyright and trademark systems are then examined in the final part, and considers how the law of copyright and trademarks might become entangled again, as art and advertising become even more entwined in the modern age, especially in the current climate where the commercial sponsorship of the arts is commonplace.

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