Creative 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.
Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 31, Issue 1 (Fall 2020), pp. 166-222