When Copyright Remedies Destroy Art

This article investigates court-ordered remedies for copyright infringement that permit the destruction of infringing artworks. While orders for delivery up for destruction of infringing copies are common, they take on a special significance when the infringing copy is three-dimensional art. Such art objects are unique because once destroyed, they are gone forever. This is of little consequence when destroying facsimile counterfeit products, but art is conventionally lionised by society and the law. This article investigates whether it receives the same treatment when it infringes copyright, and whether that treatment shifts depending on the nature of the infringement. Orders destroying art magnify significant clashes of interests across varied stakeholders. They illuminate art’s special characteristics as both intellectual and material property, which proliferates rights across those property owners. And unlike counterfeit replicas of copyright works, the community might have an interest in infringing art. Orders for destruction inevitably amplify and complicate this web of potentially clashing interests. While court-ordered destruction of art in copyright cases appears to be rare, this article considers several cases in different jurisdictions. It outlines the legal framework for destruction orders in the major common law jurisdictions, and then examines the discretionary factors that influence decision-makers to either order the destruction of infringing art, or preserve it, including the interests of both plaintiff and defendant, as well as the public interest in the survival of the impugned artwork as a free speech expression. The article concludes with some observations and a general recommendation that orders for destruction should be very rarely granted.