[Book Review] Art and Copyright Law: An Interdisciplinary Study on Interpictoriality
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Söğüt Atilla-Aydın
May 19, 2026, 3:27:11 AM (9 days ago) May 19
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Home / art / Book review / copyright / Copyright exceptions / imitation / interpictoriality / originality / Söğüt Atilla-Aydın / [Book Review] Art and Copyright Law: An Interdisciplinary Study on Interpictoriality
[Book Review] Art and Copyright Law: An Interdisciplinary Study on Interpictoriality
This is a review of the book, Art and Copyright Law: An Interdisciplinary Study on Interpictoriality (Routledge, 2025) authored by Giulia Walter (University of Zurich).
The book starts with providing an overview of the art history of interpictorial works – also referred to as ‘original copies’ – and points out the copyright infringement accusations some artists, such as Jeff Koons, Richard Prince, and Andy Warhol, have commonly been facing because of reproducing copyright works without authorisation while creating their own works, even where those new works contribute to the progress of the arts, creativity, and innovation. Against this background, the book argues for a new model of copyright that is cognitively open to insights and experiences of other systems of society, particularly the art system.
Part II provides an overview of originality of works under Swiss copyright law. It is demonstrated that (i) originality is interpreted as a requirement of having an ‘individual character’ which features a material difference from the past, reminding the EU reader of the novelty and individual character requirements of design protection [see to that end, especially p. 58 where the Swiss courts’ practice of ‘comparing what was there before to what has just been created’ and deciding ‘whether a residual difference remains that could potentially qualify for copyright protection’ is presented], and (ii) as copyright law solely focuses on the form of the work, but not the content, it usually denies interpictorial works protection because of not seeing that ‘everything else around [the form] has changed’, such as the earlier work’s meaning, message, and context. Therefore, it is argued that interpictorial original copies cannot be treated as different, new, original works by copyright law, but remain mere copies of earlier works. The author calls this inadequacy of copyright law vis-à-vis art practice, copyright’s ‘blind spot’.
In Part III, the book explores the space provided for interpictoriality by the exceptions to copyright. The parody, pastiche, quotation, ‘artistic quotation’, panorama, and personal use exceptions are evaluated primarily under Swiss law, but also by comparing them with the German approach to some of these exceptions and the CJEU case law, where relevant. Consequently, despite the fact that copyright laws do not simply consider all copying infringement, where a certain creation approaches the ‘blind spot’ because of keeping the source works unaltered or because of being substantially similar to them, it becomes more likely for that creation to be treated as an infringing copy on grounds of this visual assessment, independent of the changes made in its content, meaning, or purpose. Although this is a fair observation, this Kat has doubts about the extent to which these abstract, non-materialised concepts should influence the decisions of infringement or copyrightability.
The next chapter in this part discusses how copyright ‘irritates’ and is ‘irritated’ by art. It argues that, on the one hand, the blurriness of copyright rules and the constant risk of infringement proceedings render copyright a ‘theme of art’, affecting certain choices of artists. On the other hand, art affects the way copyright operates. Despite copyright law’s claims of remaining ‘aesthetically neutral’ and thus ‘unbothered by the art system’, the author demonstrates how copyright is ‘permeable to considerations of aesthetic order’. The author does not consider this a problem, but rather, a necessity, and thus, argues that this latter irritation should become more explicit, rendering copyright more ‘cognitively open’.
Part IV contends that the three-step test and fundamental rights should remain ‘emergency solutions’ and be resorted to ‘parsimoniously’, because these ‘external remedies’ prevent copyright law from evolving and changing, and merely, if at all, provide ad hoc solutions in individual cases of interpictoriality.
Finally, Part V argues that copyright needs to take into account the ‘multilayered existence’ of interpictorial works. The difference of context, message, meaning, time, space, and the techniques adopted in the creation of an earlier work and an interpictorial work should all be relevant factors to consider. By this way, the author is confident that original copies will be differentiated from mere copies, forgery, and plagiarism; as interpictorial works will not have deceitful purposes, nor actively conceal the origin of the copied works. Ultimately, the book suggests that only by adopting interdisciplinary strategies that would allow ‘understanding the difference without seeing it’, copyright law can properly address interpictorial original copies.
This Kat enjoyed reading the book very much, and especially thinking alongside the author about the ways in which copyright can give effect to ‘what art has to say about itself’. The book persuasively demonstrates why copyright protection is usually not available to original copies, how exceptions, as they are currently applied, generally fall short of allowing them avoid liability, and how even the threat of initiating proceedings sometimes affects artists’ choices. Copyright law, indeed, has a narrow room for imitative works which needs to be broadened for various reasons, including the inadequacy of copyright law in responding to original copies, as identified in the book, upholding the freedom of artistic expression, and recognising the imitative practices of artists. However, the book’s suggestion for improving copyright in this respect, remains rather abstract.
After rejecting a more flexible interpretation of the existing concepts and relying on the so-called ‘external remedies’, the book solely argues for adopting interdisciplinary strategies where art history, theory, and practice can shed light into ascertaining the place of interpictorial works, generally, within copyright law, as opposed to a case-by-case determination. It is not contested that an interdisciplinary approach to copyright law can provide for a more welcoming stance towards imitative works, however, the book could have elaborated on the specific strategies that it deems desirable. Because currently, it is not clear whether, for instance, introducing a new concept influenced by artistic practices, such as a creative reuse exception, or interpreting particularly the pastiche exception in a way that is informed by art history and theory would count as one of the strategies that the book would be in favour of, and if not, why. Moreover, a case-by-case assessment of interpictorial works may still be the more desirable and fairer alternative to address whether a specific imitation should be allowed, given interpictorial creations’ close connection with potentially infringing acts.
Interdisciplinarity may have some benefits, ensuring an effective treatment of interpictorial works within copyright law. However, artistic and aesthetic judgments should not take precedence over copyright law’s own rules. It is, therefore, important to draw the limits of this interdisciplinarity and confine it to copyright terms. In other words, rather than calling for lawyers and judges to consider interpictorial works by reference to the rules and standards of the art system, copyright law’s existing concepts should be revisited and reinterpreted, keeping in mind the practices and endeavours of artists, including the ones relying on imitation.
Extent: 264 pages
The book provides for a much need, however, until very recently [Merpel: I see that someone is hovering around Pelham…], under-studied account of the issue of interpictoriality, i.e., reusing existing works or parts thereof in the creation of new ones, and copyright law’s response to it. As this Kat is also working on providing more ‘breathing space’ for artists’ imitative practices under copyright law, this book was of particular interest to her.
The book starts with providing an overview of the art history of interpictorial works – also referred to as ‘original copies’ – and points out the copyright infringement accusations some artists, such as Jeff Koons, Richard Prince, and Andy Warhol, have commonly been facing because of reproducing copyright works without authorisation while creating their own works, even where those new works contribute to the progress of the arts, creativity, and innovation. Against this background, the book argues for a new model of copyright that is cognitively open to insights and experiences of other systems of society, particularly the art system.
A closer look at the book
Part I demonstrates that it is not possible to create something ‘ex nihilio’. The book makes the point that copying or borrowing some elements from earlier works has always been a technique and an integral part of artists’ practices. This technique is observed mainly in two modes: concealing the earlier work, and ‘boldly’ including the entirety of an earlier work or parts thereof, sometimes even without alteration, in the new works. From a copyright perspective, it appears that interpictorial works have become a problem when artists ceased to ‘camouflage’ their imitative practices, as these original copies cannot comfortably be placed on one side of copyright’s ‘original/reproduction’ dichotomy. For this reason, the following parts of the book attempt to locate those artworks’ place within copyright law.Part II provides an overview of originality of works under Swiss copyright law. It is demonstrated that (i) originality is interpreted as a requirement of having an ‘individual character’ which features a material difference from the past, reminding the EU reader of the novelty and individual character requirements of design protection [see to that end, especially p. 58 where the Swiss courts’ practice of ‘comparing what was there before to what has just been created’ and deciding ‘whether a residual difference remains that could potentially qualify for copyright protection’ is presented], and (ii) as copyright law solely focuses on the form of the work, but not the content, it usually denies interpictorial works protection because of not seeing that ‘everything else around [the form] has changed’, such as the earlier work’s meaning, message, and context. Therefore, it is argued that interpictorial original copies cannot be treated as different, new, original works by copyright law, but remain mere copies of earlier works. The author calls this inadequacy of copyright law vis-à-vis art practice, copyright’s ‘blind spot’.
In Part III, the book explores the space provided for interpictoriality by the exceptions to copyright. The parody, pastiche, quotation, ‘artistic quotation’, panorama, and personal use exceptions are evaluated primarily under Swiss law, but also by comparing them with the German approach to some of these exceptions and the CJEU case law, where relevant. Consequently, despite the fact that copyright laws do not simply consider all copying infringement, where a certain creation approaches the ‘blind spot’ because of keeping the source works unaltered or because of being substantially similar to them, it becomes more likely for that creation to be treated as an infringing copy on grounds of this visual assessment, independent of the changes made in its content, meaning, or purpose. Although this is a fair observation, this Kat has doubts about the extent to which these abstract, non-materialised concepts should influence the decisions of infringement or copyrightability.
The next chapter in this part discusses how copyright ‘irritates’ and is ‘irritated’ by art. It argues that, on the one hand, the blurriness of copyright rules and the constant risk of infringement proceedings render copyright a ‘theme of art’, affecting certain choices of artists. On the other hand, art affects the way copyright operates. Despite copyright law’s claims of remaining ‘aesthetically neutral’ and thus ‘unbothered by the art system’, the author demonstrates how copyright is ‘permeable to considerations of aesthetic order’. The author does not consider this a problem, but rather, a necessity, and thus, argues that this latter irritation should become more explicit, rendering copyright more ‘cognitively open’.
Part IV contends that the three-step test and fundamental rights should remain ‘emergency solutions’ and be resorted to ‘parsimoniously’, because these ‘external remedies’ prevent copyright law from evolving and changing, and merely, if at all, provide ad hoc solutions in individual cases of interpictoriality.
Finally, Part V argues that copyright needs to take into account the ‘multilayered existence’ of interpictorial works. The difference of context, message, meaning, time, space, and the techniques adopted in the creation of an earlier work and an interpictorial work should all be relevant factors to consider. By this way, the author is confident that original copies will be differentiated from mere copies, forgery, and plagiarism; as interpictorial works will not have deceitful purposes, nor actively conceal the origin of the copied works. Ultimately, the book suggests that only by adopting interdisciplinary strategies that would allow ‘understanding the difference without seeing it’, copyright law can properly address interpictorial original copies.
Some thoughts
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| Mr Lemon is ready to purruse this book! |
After rejecting a more flexible interpretation of the existing concepts and relying on the so-called ‘external remedies’, the book solely argues for adopting interdisciplinary strategies where art history, theory, and practice can shed light into ascertaining the place of interpictorial works, generally, within copyright law, as opposed to a case-by-case determination. It is not contested that an interdisciplinary approach to copyright law can provide for a more welcoming stance towards imitative works, however, the book could have elaborated on the specific strategies that it deems desirable. Because currently, it is not clear whether, for instance, introducing a new concept influenced by artistic practices, such as a creative reuse exception, or interpreting particularly the pastiche exception in a way that is informed by art history and theory would count as one of the strategies that the book would be in favour of, and if not, why. Moreover, a case-by-case assessment of interpictorial works may still be the more desirable and fairer alternative to address whether a specific imitation should be allowed, given interpictorial creations’ close connection with potentially infringing acts.
Interdisciplinarity may have some benefits, ensuring an effective treatment of interpictorial works within copyright law. However, artistic and aesthetic judgments should not take precedence over copyright law’s own rules. It is, therefore, important to draw the limits of this interdisciplinarity and confine it to copyright terms. In other words, rather than calling for lawyers and judges to consider interpictorial works by reference to the rules and standards of the art system, copyright law’s existing concepts should be revisited and reinterpreted, keeping in mind the practices and endeavours of artists, including the ones relying on imitation.
Details
Publisher: Routledge, 2025Extent: 264 pages
Format: Hardcover and eBook (Open Access)
ISBN: 9781032974484
Image credit: Söğüt Atilla-Aydın and ChatGPT
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