I was fortunate enough to recently visit “The Art of the Brick” exhibition at The Old Truman Brewery in East London. For those of you who are unaware of this global phenomenon, it is an art exhibition made entirely out of Lego bricks.
The brain behind the bricks is Nathan Sawaya, a former corporate lawyer. After resorting to building Lego models in his spare time to relax, Nathan decided to turn his back on the Law and try his hand at Lego on a full-time basis. Since this decision in 2004, he has been heralded as being the founding father in taking Lego to the art world.
As someone who would repeatedly choose a quirky art form over a Rembrandt or Monet, I was stunned by the sheer creativity of Nathan Sawaya and the way in which he has managed to manipulate a material that most of us, myself included, can do no more with than build a tower. However, as a student of Intellectual Property, the case law and debate surrounding sculptures under copyright law immediately became apparent and the exhibition suddenly took on a whole new meaning.
Is a Lego model really a sculpture?
Section 4(1)(a) Copyright, Designs and Patents Act 1988 (‘CDPA 1988’) expressly provides copyright protection for original sculptures, irrespective of their artistic quality. Whilst it is clearly (and quite rightly) the legislature’s intention that artistic quality should not be a consideration when categorising what is a sculpture, the Courts have been careful not to draw the scope of what constitutes a sculpture too widely.
In the most relevant case to date on the subject, Lucasfilm Ltd v Ainsworth (a case concerning Stormtrooper helmets, which ironically have often been replicated by Lego in Star Wars-themed box sets), Mann J felt that one must have regard to the ordinary meaning of the word ‘sculpture’, but that the scope should extend beyond what one would usually expect to find in an art gallery or similar exhibition. Whilst the Supreme Court eventually upheld the decisions of the High Court and Court of Appeal (holding that a Stromtrooper’s helmet and armour are not sculptures), the Supreme Court was not keen on the Court of Appeal’s “elephant in the room test” (i.e. you know a sculpture when you see one) propagated by Jacob LJ and for good reason, as this test does little to promote creative endeavours and artistic furthering through the medium of sculpture.
Whilst section 4(2) CDPA 1988 does provide that the intention of the artist when creating a sculpture can be taken into account, (Mann J highlighted that the purpose of the Stormtrooper helmet and armour was functional, thus removing it from the sphere of the sculpture), it seems uncontroversial to conclude that Nathan Sawaya’s creations are sculptures in their own right, deserving protection by the law in some form. However, it should be noted that this is not a blanket rule concerning any model made out of Lego, but a view purely based on the very nature of Sawaya’s artwork.
The Issue of Originality
The main difficulty arises out of the subject matter of these Lego sculptures. As alluded to above, an artistic work must be original to gain copyright protection. For those who have not seen Nathan Sawaya’s work, it broadly falls into two distinct categories.
The first are works taken from the artist’s own ideas, and these appear to satisfy the admittedly low test for originality under copyright law following the CJEU’s ruling in Infopaq (‘the author’s own intellectual creation’).
The second type are more problematic, comprising of Lego sculptures depicting real-life paintings and sculptures. For example, in the London exhibition, there are exact replica Lego sculptures of da Vinci’s ‘Mona Lisa’, Munch’s ‘The Scream’ and Vermeer’s ‘Girl With A Pearl Earring’. The evident problem is that whilst Lego sculptures of these paintings may be an original way of displaying them, the actual content of the sculptures is not original.
Thus the question becomes: is there an infringement of copyright? For Nathan Sawaya’s Lego sculptures depicting historic portraits and sculptures, it would appear not. This is due to copyright having long expired in these works, causing them to fall into the public domain as a result.
So whilst it looks like Nathan Sawaya has not infringed the rights of da Vinci in the Mona Lisa, would the answer be the same if he made a Lego sculpture of a painting created in 2014? Under section 17(3)(a) CDPA 1988, ‘copying’ includes the making of a copy of a two-dimensional work in three dimensions as far as artistic works are concerned. As Lego bricks are, by their very nature, bricks, anything made with them appears to be inherently three-dimensional and, as such, would seemingly satisfy this definition of copying. Thus it would appear that Nathan Sawaya should stick to replicating the classics to avoid copyright infringement issues.
Is this fair?
Should Nathan Sawaya’s modern recreation of paintings and sculptures be limited to those created in the distant past following the expiry of their copyright protection? Perhaps the solution is to amend section 62 CDPA 1988 to allow for the copyright in all artistic works (rather than for a selected few as currently drafted) situated permanently in public places to not be infringed by making a sculpture of them. The reasoning behind the legislature’s limitation of non-infringing behaviour to making graphic works, broadcasts and photographs depicting a selected few types of work (section 62(2) CDPA 1988) is unclear – however, a line does admittedly need to be drawn somewhere to balance the rights of authors with the freedom to create and express artistic intent and desire.
So where does this leave our former lawyer turned bricklayer (if such a term can be used)? Whilst there is something rather poetic about only the historic being capable of modernisation through Lego without infringing copyright, perhaps a lack of freedom when concerning artistic works which still attract copyright needs to be addressed. That said, maybe the true test of whether a work is worth replicating at all is whether people are still interested in it once it has fallen into the public domain! Whatever the legal implications, Nathan Sawaya’s work is definitely worth seeing.
Note from the author – at no stage does the content of this blog post offer or provide legal advice of any form and should not be relied on as such. Should anyone have any personal/professional issues concerning sculptures and copyright law, please seek legal advice. For further information, please see the full Disclaimer under the ‘About’ tab.