Copyright\u27s Illogical Exclusion of Conceptual Art That Changes over Time

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection. There are of course both normative and descriptive questions around the copyrightability of conceptual art, and this Essay addresses itself primarily to the descriptive question of fixation, and whether works of art that contain change, by design, must be excluded. Just because a work may be what Kelley called “inherently changeable” does not mean that it need necessarily fail to qualify as fixed. This Essay explores the tension that the Kelley court identified between copyright law and certain works of contemporary art to argue that many kinds of art can be understood by analogy to well-settled case law—like Williams and its progeny—that finds that some works may be fixed even when they contain change. By parsing a few kinds of change that occur in works of conceptual art, I hope to offer comfort to conceptual artists who would like to see their practices at least potentially protected by copyright, as well as guidance to courts seeking to apply or distinguish Kelley. Part I surveys the rationales for the fixation requirement and discusses the case law holding that works of art that change may still qualify for protection, culminating in the puzzling decision to the contrary in Kelley. Part II offers a taxonomy of different kinds of conceptual art that could be seen as “inherently changeable,” per Kelley, and argues that these categories should be understood and treated distinctly. Finally, this Essay concludes that Kelley’s overly broad “inherently changeable” test threatens to exclude from copyright protection many different kinds of conceptual art on the basis that their changing or changeable nature renders them unfixed. Some of these works are analogous to the changing works that have been protected through copyright in spite of their internal change, like the video games in Williams, and some of them diverge in ways that might or might not be relevant for copyright law. I conclude that courts should be wary of relying on Kelley and should treat different kinds of conceptual art differently depending on what kind of art they are adjudicating