Tangible Fixation And Preclusion Of Emphemeral Art


Art is considered to be a gift to mankind, it has been there since the time immemorial with humans from Madhubani wall paintings of Mithila in 7th century BCE to graffiti of 21st century, art has developed its forms. It is believed that art embodies great influence on human life it is a form of expression and has the ability to improve quality of life. With acknowledging its presence, it is equally important to acknowledge the creators hard work and creativity, thus providing protection to their work from being misused or unauthorized use.

Madhubani painting

[Image Sources : Shutterstock ]

Copyright a form of intellectual property rights plays a pertinent role when it comes to protecting the artistic work by providing the creators with monopoly and monetary rights over artistic works. But the mandatory requirements laid down by Copyright protection Act, 1975 in reference to Practice and Procedure Manual on Artistic Works, 2018, Copyright Manual[1] hardly concerns itself with the amount of creativity and uniqueness as it strictly restricts itself to expression, permanent fixation and originality thus creating separation for ephemeral artists from copyright protection, ephemeral art is a form of transient or developmental  art and  a growing sector of present-day modern art, also currently being the most audience engaging art form as well. The following article will shed light on the said issue of exclusion of copyrightability.


  • What is Ephemeral form of artistic works?

Since traditional forms of art are inherently static, art conservators delve themselves into keeping them in their original state. It is shielded from infringement by trademark, copyright, patent, or design laws. But unlike traditional art, impermanent art belongs to the category of conceptual art or say modern art. Preventing it from changing over time would be counterproductive because it links its expression to its altering shape. Ephemeral art can take the form of temporary installations in public spaces or galleries, the use of naturally ephemeral

materials such as flowers food items, sand, etc., for graffiti, makeup, food plating, architectural works. All of the mentioned artwork satisfies the requirements of “material form” under the Copyrights Act and “tangibility” under the Copyright Manual, in reference to section 14(c) of the act ephemeral art or impermanent art can be segregated into-

  • evolving art
  • repetitively-changing art
  • decaying art. 

The Ambit of Copyright Protection

For grant of copyright protection for any creative work it is necessary that the three requirements should be met, it protects “original expression” of an idea in the form of some tangible creative work, but not solely the idea itself. Copyright prohibits ideas or facts from its ambit of protection [2]

An inference from Copyright Act reveals exclusion of definition for ‘original’, As decided in historic ruling of Eastern Book Company v. D. B. Modak[3] the Indian Copyright Law places originality somewhere between the two poles of the British standard of “sweat of brow[4]” and American “modicum of creative test” To put it another way, anything is considered original if the person who created it poured their heart, soul, expertise, and some degree of imagination into it and the work has not been previously copied or embodied.

In reference to perquisite of ‘fixation in a material/tangible form’, section 14(c) expressly states that copyright means to have ‘exclusive right’ to reproduce the artistic work in any ‘material form’. A work will be considered to be fixed if it is stable and can be stored on some medium in which it can be reproduced, perceived or can be communicated through any means. The affirmed that copyright only arises when an idea is converted into a tangible form, while considering the copyrightability of a Hindi film.[5]

 Ephemeral art being an impermanent form of art still fulfils the requirement of ‘material form’ within the Copyrights Act and ‘tangibility’ as provided within the Copyright Manual. However,

it lacks protection of copyright under the act due to its temporary nature as it can’t be stored for longer time to be reproduced.

Fixation- A compulsion or an Issue?

In making fixation a pre requisite condition The Berne Convention for the Protection of Literary and Artistic Works, 1979 has its own fair share of contribution, in its article 2(1) it provides that copyright subsists in literary and artistic works „regardless of the mode or form of its expression and article 2(2) provides that the government of each member Union can

determine whether the ‘fixation in a material form’ is a requirement to grant copyright protection or not. For Common law countries fixation is a mandatory requirement while in civil law countries it is not. The US Copyright Act of 1976 led to the emergence of the legal requirement that any work needs to be fixed in order to gain protection of copyright.

India being a signatory member to both Berne convention and TRIPS Agreement, provides copyright not to be an idea but only to be an expression. A similarity of fixation being a requirement can also be seen in UK’s & US’s Copyright law.

Requirement of fixation is really driven by evidentiary concerns as suggested by research paper titled “Copyright as Rule of Evidence”. It is primarily advantageous because they facilitate the legal determination procedure by acting as an evidence, confirmation to judges in copyright cases that the work in question actually does exist.[6] Also by making fixed versions marketable and transferable through sales, leases, and other profitable transactions, an author’s potential to benefit from his work is increased.

Some legal researchers termed the requirement as ironic and problematic[7] it stands as a restriction or limitation for present day art and its materialistic growth, as an adequate explanation is lacking for fixation as what degree of permanence suffices for a work to be fixed and gain protection, The Copyright Manual, falls short as it doesn’t specify the scope or bounds of what is meant by the term “fixation” opening the door of legal ambiguity.

Ephemeral art like live art cannot be referred to as being “permanently fixed” due to its transient character, even though it is in tangible form the “issue” is the short duration, thus there exists legal complexities for control of work, reproduction and dematerialisation as well.

One must not lose sight on origination of copyright law which was in print period and that, without constant revision, it may not be able to keep up with modern expression, which has survived much beyond “print.” This implies that it is necessary to just lessen the intensity of “fixation,” rather than to completely eradicate ephemeral art, as the aim of copyright protection is valuing an artist’s creativity and labour, only way to provide protection is to broaden or define what is meant by “permanence.” Due to a lack of clarity in the statutory provisions, it is currently unclear what “degree of permanence” is necessary for “fixation in a tangible form.”


Even though criterion of “fixation in a tangible medium” is acknowledged, the authorities have mostly given attention to the latter portion of “tangibility” and have somewhat overlooked the equally important condition of “fixation.” Many new-media artists are likely be affected as a result of the requirement’s conservative interpretation, which has sufficient support in the form of precedent and evidence.   It is time to reassess how “fixed” courts and legislators have been on “fixation” and create a copyright regime that is more open to all. It shall propose a middle way that will let ephemeral art qualify for copyright protection.

Author : Jyoti Rani, Sem- 7th s 4th yr.  A Student of NUSRL, Ranchi,  in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com  at Khurana & Khurana, Advocates and IP Attorney.

[1] Practice and procedure manual on Artistic Work, (2018) copyright.gov.in. Available at:

https://copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf (Accessed: November 28, 2022).

[2] Donghue vs Allied Newspaper limited (1937) 3 Ch. D.503

[3] Eastern Book Company & Ors vs D.B. Modak & Anr (2008) 1 SCC 1

[4] University of London Press v. University Tutorial Press (1916) 2 Ch. D. 601

[5] Vipul Amrutlal Shah vs. Shree Venkatesh Films Pvt. Ltd. & Ors. CS No. 219 of 2009

[6] Lichtman, Douglas Gary. “Copyright as a Rule of Evidence.” SSRN Electronic Journal,2002, https://doi.org/10.2139/ssrn.307081

[7] Masson, Douglas J. “Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work” 71 Indiana Law Journal 1050-1066 (1996).

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