- The function, quality, subject-matter and popularity of
a work are irrelevant to its copyrightability
In Walter v. Lane [1900] A.C. 539, 549 (U.K.: House of Lords), the Lord
Chancellor said that copyright arose in a book “whether that book be wise or
foolish, accurate or inaccurate, of literary merit or of no merit whatever.”That principle applies to all works, not just books, as the following case on
artistic works indicates:Hay v. Sloan, (1957) 12 D.L.R. (2d) 397 (Canada: Ontario High Court)[The plaintiff, a builder, sued the defendant, another builder, for copying the
design of a house created by the plaintiff. The defendant claimed that the
plaintiff’s house was an ordinary small house, not even designed by an
architect, and intended for mass production. Such a building, the defendant
claimed, could not qualify as an “architectural work”, a category of “artistic
work”. The court disagreed with the defendant, and awarded the plaintiff an
injunction and damages for infringement of his copyright. (This case is
considered again under the heading Damages in Section IV.)]MR JUSTICE STEWART:It must be obvious that size is not only no criterion of artistic value but that it cannot be
considered. The jewellery of Fabergé and Cellini are as artistically valid as Cheop’s pyramid or
the Temple at Karnak and, artistically speaking, there may be “infinite riches in a little room”.
Nor can the cost of construction be a consideration. I see no reason to suppose a Cape Cod
cottage or a small but beautifully designed country Georgian house to be of less architectural
merit than the costly cube which today expresses the success of a large corporation. ..[N]either
size nor value affects the right to copyright in the artistic quality of architectural designs...It was said that it was for the trial judge to decide whether the building was artistic or inartistic
and that the wording of the Act requires such a decision. It is gratifying to think that those who
drafted this Act were content to leave such aesthetic responsibility to the judiciary, but it is, I
think, dangerous to assume such intention. While juries are occasionally faced with such
problems ... and Lord Chancellors or Boards of Censors may be saddled with the duty of
protecting an innocent and pure-minded public from impropriety in the arts, yet legislators in the
past have, probably not unwisely, refrained from appointing Judges to act as arbiter, perhaps due
to the fact that they, like Gilbert’s learned statesmen, “do not itch to interfere in matters which
they do not understand”, and, for other reasons, I do not believe that this was the intention of the
legislators.The good art of today is almost invariably the bad art of tomorrow, for aesthetic standards and
values change from generation to generation. The admirer of Fragonard would scarcely concede
merit to Mondrian’s rectangles. He who rejoices in the stately periods of Sir Thomas Brown
would probably find the prosody of Gertrude Stein intolerable. Orff and Offenbach, save in the
unusually eclectic, do not attract the same disciples nor for that matter would Martha Graham
and Gypsy Rose Lee. In this last antithesis, I may be wrong. The legal approach is, as a rule, to
elevate precedent and to view innovations somewhat askance. The function of the Judge has
always been to weigh evidence and propound existing law. In the arts evidence of aesthetic
values is, as a rule, merely the heated opinion of prejudiced adherents. ...
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