Shedding Light on Copyright’s Challenges in LED-Based Art

July 24, 2025

By Juliette Groothaert

For centuries, artists have been fascinated by capturing light. From the Renaissance masters who pioneered techniques like sfumato to create dissolving edges for lifelike depth, to Caravaggio’s dramatic chiaroscuro wielding stark light and shadow to carve visceral intensity onto canvas, the use of light has undeniably played a pivotal role in shaping how artists illustrate the world. Yet, for all this mastery, light remained a tool to depict reality, never being the primary substance of the art itself.

An example of chiaroscuro is Giovanni Baglione’s “Amor sacro e profano” (1602)^[1] Leonardo’s “Mona Lisa” (ca. 1503-1519) is an example of sfumato^[2]

That shift arrived with the crackle of electricity. Edison’s invention of the lightbulb in 1897 ignited a revolution as artists suddenly were not just painting with light, but would sculpt in it too. Pioneers like László Moholy-Nagy, a Bauhaus visionary, seized this potential. His seminal Light-Space modulator (1930) was a kinetic constellation of projections, reflections, and shifting shadows, declaring light as a pure dynamic medium. The evolution accelerated with the 1960s and 70s Light and Space Movement. Artists like James Turrell and Robert Irwin moved beyond objects, crafting immersive environments where manipulated light itself altered perception, dissolving walls and heightening awareness of the ephemeral.

Now, in the programmable glow of Light Emitting Diodes (LEDs), contemporary artists build on this rich legacy to push art into unchartered territories. This is brilliantly illustrated by Anthony McCall’s ‘Solid Light’ series, recently epitomised by its 2024 exhibition at London’s Tate Modern. McCall’swork crystallises the tensions this article examines: projected beams of dense light piercing through fine mist to create interactive sculptures that defy traditional categorization. Ahand passing through the haze evokes the tactile sensation of parting water or displacing cosmic matter. McCall himself positions these works at an intersection of disciplines; sculpture in their spatial occupation, and cinema in their temporal progression. And yet their true innovation appears to lie in light’s refusal to adhere to static form. Light requires no traditional substance as it carves space from the void, dissolving conventional boundaries between artwork, viewer, and the environment. This very lack of fixed form invites profound subjectivity. Viewers project meaning onto the light beams as some discern science-fiction portals, others spiritual encounters. More on the development of illumination as a sculptural medium can be found here.

But this brilliant new frontier brings to light interesting copyright questions. How do we distinguish artistic form from utility in light-based works? Where does authorship vest in an illumination? How do we determine the extent to which the originality threshold is met? Can an illumination ever be ‘fixed?’ While this article does not claim to provide definitive answers to this emerging intersection of art and law, it seeks to explore and outline some of the potential issues that may arise.

Copyright Background

While this article has primarily touched upon European artists, it analyses their work through the lens of U.S. copyright law for two compelling reasons. Firstly, the Berne Convention establishes baseline international standards that the U.S. system reflects, creating meaningful points of comparison. Secondly, and perhaps most critically, the U.S. fixation requirement presents uniquely acute challenges for ephemeral light art that can be served to illuminate broader doctrinal tensions.

The U.S. Copyright Act, requires an item to have three fundamental elements in order to receive protection (17 U.S.C. § 101): originality, human authorship, and fixation in a tangible medium.^[3] A significant challenge for contemporary art in a conceptual form such as light, is meeting the ‘fixation’ criterion. Section 102(a) of the Copyright Act requires that “original works of authorship [be] fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”^[4] ‘Fixed’ is defined by the Act as a work in a tangible medium of expression when its embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.^[5] Typically, traditional artistic media (i.e., canvas, clay) easily meets copyright’s fixation requirement.^[6] As a result of this, because fixation is easily satisfied in traditional artistic media, there is little case law exploring how the requirement applies outside digital contexts, where the question becomes more complex and contested.^[7] This creates an inherent tension with art where light itself is the primary medium, often existing in transient, interactive states. Most advanced light art deliberately prioritises the underlying idea and viewer experience over static physical manifestation, choosing their artistic expression over their ability for legal protections.

This approach starkly contrasts with durable traditional forms designed for longevity. While state law may offer limited protection for unfixed works,^[8] federal exclusion primarily stems from failing fixation when art is improvisational, transient, or decaying, all characteristics often inherent in light art. More on copyright protection in short-lived artworks can be found here on the Center’s website.

Improvisational works, for instance, typically lack protection unless recorded; even then, copyright generally attaches only to the fixation itself rather than the underlying performance.^[9] Similarly, mutable works seemingly lack a single, stable version to which copyright protection can adhere.^[10] Light art like McCall’s, where the viewer’s movement fundamentally alters the perceived ‘sculpture’ and the work exists as an evolving interplay of light, mist, and participant, seemingly fails to enable compliance with the required federal standard. A strictly literal interpretation of the fixation requirement would dictate exclusion for such works.

Yet, as astutely argued by Zahr K. Said here, despite this logical interpretation, fixation’s practical application in reality is inconsistent, functioning as a boundary mechanism that limits protection for conceptual work.^[11] Recent jurisprudence, notably Kelley v. Chicago Park Dist,^[12] only exacerbates this confusion. The Seventh Circuit denied protection to a living garden installation partly because natural elements rendered it ‘inherently changeable’ and thus unfixed, demonstrating how lack of authorial control over the work’s form can ultimately negate fixation. This underscores a fundamental blind spot within copyright law, vividly illustrated by conceptual art cases, that copyright law requires a degree of authorial control and predictability in the work’s manifestation for authorship recognition. To the extent a creator exerts insufficient control, or the work’s form involves excessive unpredictability, copyright law risks concluding that the creator is not the ‘author’ entitled to protection. Therefore, a lack of control or predictability jeopardizes the recognition of authorship and the grant of copyright protection itself. When creators of inherently dynamic or interactive works like LED-based art do not exert insufficient control, or if they choose a form that involves significant unpredictability, these artists risk falling back on copyright laws that will likely conclude that they are not entitled to protection.

Separating Art from Function

A creative work, as articulated by aesthetic philosopher Berys Gaut, is one that exhibits ‘flair.’^[13] Flair nicely encapsulates this element of imaginative agency that transcends mechanical or chance-driven processes. In other words, there must be some unpredictable ‘spark’ to the work, a reflection of some subjective judgement throughout its creation. Any utilitarian elements of an artwork are not eligible for copyright protection.^[14] This framework is acutely tested in light-based art, such as Anthony McCall’s Solid Light installation. These works, described as “film without content” and “sculpture without mass,”^[15] challenge conventional notions of fixation and authorship. McCall’s manipulation of light relies on nuanced environmental variables (e.g., mist density, viewer movement), demanding the very flair Gaut describes: subjective choices that infuse fleeting phenomena with artistic meaning. Yet, light’s intrinsic functional capacity as illumination complicates its status, raising the existential question: can light ever shed its utilitarian associations to exist purely as creative expression?

The legal tension between creativity and utility crystallised in Munro v. Fairchild Tropical Botanic Garden,^[16] a pivotal case contesting the copyrightability of light sculptures. Artist Bruce Munro launched a copyright infringement lawsuit against the Fairchild Tropical Botanical Gardens in Florida, for displaying knockoff imitations of his light sculptures from Chinese company Zhongshan G-Lights Lighting Co., Ltd. (“G-Lights”). Central to his claim was the assertion that his installations qualified as sculptural works under copyright law, bolstered by the Eighth Circuit’s ruling in Munro v. Lucy Activewear,^[17] which acknowledged light-based art as potentially copyrightable. Munro’s legal team sought copyright protection under the Berne Convention for the Protection of Literary and Artistic Works of 1886,^[18] which as revised, requires member countries to: recognise the copyright of works and authors from other member countries in the same way they recognise the copyrights of their own nationals, and provide strong minimum copyright protections.

Fairchild’s defense, however, weaponized the useful articles doctrine, arguing Munro’s works were utilitarian light fixtures devoid of separable artistic elements, and therefore ineligible for copyright protection under U.S. law.^[19] This case underscores a critical dilemma: can light, an intangible medium often deployed in functional contexts, satisfy copyright’s requirement for originality and conceptual separability?

To resolve such questions, courts turn to the framework established in the seminal case of Mazer v. Stein^[20] and refined in Star Athletica v. Varsity Brands.^[21] Mazer affirmed that utilitarian objects (e.g., lamp bases) could incorporate protectable artistic elements if those elements were conceptually separable from function.^[22] The Star Athletica test formalized this into a two-pronged analysis.^[23] In the first prong, the viewer must be able to identify a two or three dimensional element that appears to have graphic, pictorial, or sculptural qualities.^[24] In the second prong, the viewer must be able to imagine the feature existing as its own pictorial, graphic, or sculptural work, independently from the utilitarian article.^[25]

Applying this test to light-based art demands judicial imagination akin to Marcel Duchamp’s readymades, where ordinary objects (e.g., a urinal) were recontextualized as art. Like Duchamp, courts must discern whether the artistic ‘flair’ in an LED array transcends its functional role as illumination. For instance, Munro’s Field of Lights might be seen as sculptural if its arrangement evokes unique aesthetic expression separable from mere lighting. Yet, as Fairchild counters, if the same LEDs serve garden illumination, their artistic identity blurs. Arthur Danto’s theory of the artworld amplifies this ambiguity: is a beam of light art because it inhabits a gallery context, or is it merely one of the many ‘artworks, waiting, like the bread and wine of reality, to be transfigured?’’ as he put it in reference to Warhol’s Brillo Boxes.^[26] Ultimately, courts are focused on the general problem of how a work evaluates itself as an object among other objects in the world.^[27] Yet copyright’s fixation requirement complicates this further. Light’s ephemerality resists traditional fixation. Thus, light art inhabits a double bind as it must prove separability from utility while delaying fixation in tangible form.

Compounding this is copyright law’s tendency to cast creativity in a purely additive light, i.e. creativity is what you add to something. A flaw exposed in cases like Meshwerks v. Toyota, Judge Gorsuch deemed digital wireframe models uncopyrightable for lacking ‘digital paintbrush’ additions, ignoring that the creative act lay rather in the ‘subtractive’ abstraction- in this case, distilling a Camry’s complex forms into essential lines.^[28] Creativity here is abstractive, yet copyright’s doctrines often fail to recognise reduction as inventive labor.

Ultimately, light-based art forces a reckoning with copyright’s foundational categories. Can a “moment of light” be conceptually separated from time and air? Does its impermanence negate authorship? As courts dissect LED installations under Star Athletica, they confront Duchamp’s enduring question: When does utility end and art begin? The answer, like light itself, remains elusive, shifting with the angle of interpretation.

Authorship

The question of authorship in light-based art further exposes profound tensions between copyright law’s foundational requirements and the practical realities of contemporary artistic practice. As touched upon earlier, under U.S. law, authorship initially vests in the party who fixes a work in a tangible medium (17 U.S.C. § 201(a)),^[29] with fixation defined as embodiment ‘by or under the authority of the author’ in a ‘sufficiently permanent’ form.^[30] This framework assumes a level of authorial control that becomes problematic for artworks subject to natural forces of participatory elements. McCall’s installations, for instance, conveniently demonstrate how they depend on precise environmental conditions: haze machines must generate carefully calibrated vapour, airflow patterns dictate the movement of mist, and viewers actively reshape the work by casting shadows and ‘bending’ light through movement. As curator Gregor Muir observes, the vapour itself ‘gives the works their form.’^[31]

This erosion of control directly mirrors the dilemma in Kelley v. Chicago Park District, where the Seventh Circuit denied Chapman Kelley copyright protection for his wildflower garden.^[32] The court reasoned that natural forces rather than the artist determined the garden’s evolving form; though the gardener who plants and tends obviously assists, he then gives away control over the work’s ultimate expression. Similarly, Yayoi Kusama’s Obliteration Room, where visitors cover a white space with colored stickers, intentionally cedes authorship to participants. Kusama initiates the concept but cannot predict or dictate the final composition, which challenges the presumption of sustained creative agency in current copyright legislation.^[33] Although there are informal art world norms governing how prints of work are attributed to artists,^[34] there has been no suggestion that copyright ownership is affected by such norms; fixation, even if accomplished by an assistant, is created ‘for the author.’^[35]

 

Light art further complicates authorship through its technical mediation. Like Ansel Adams’ darkroom assistants or Sol LeWitt’s fabricators executing wall drawings, McCall for instance relies on technicians to calibrate haze machines and projectors. While copyright law permits fixation “for the author” by assistants,^[36] and artworld norms attribute such works solely to the conceiving artist, this practice strains copyright’s implicit linking of authorship with direct execution. Ultimately, light-based art reveals copyright law’s adherence to an outdated aesthetic theory of authorship.^[37] The law demands both control and creativity in forms misaligned with conceptual practices that embrace chance, collaboration, and ephemerality. As viewers become “cocooned” in McCall’s luminous environments where space feels “malleable” and time “immeasurable” the work transcends traditional notions of individual authorship. Copyright struggles to reconcile this with its requirement that authors “create” fixed works, exposing a system still bound to 19th-century romantic ideals of the solitary genius rather than the distributed, process-oriented creativity defining contemporary art. The consequence results in a doctrinal deadlock. Artists who embrace unpredictability risk losing authorship claims while those delegating technical execution rely on legal fictions that ignore collaborative realities.

Concluding Thoughts

The journey of light from a representational tool to primary artistic medium exposes some fundamental incompatibilities with the current copyright doctrine. LED-based works like McCall’s ‘Solid Light’, ephemeral sculptures carved from mist and participant interaction, defy fixation’s demand for permanence.^[38] The ‘Kelley’ paradox also looms large. If natural forces negate authorship in wildflower gardens, how can artists claim authority over light shaped by haze machines and viewer shadows? Similarly, Munro’s battle against replicas underscore the fault lines in the separability doctrine, as courts become reluctant art critics, arbitrating whether light transcends utility in a given context.

Despite this, copyright frameworks remain somewhat inert. Fixation privileges the recordable over the experiential. Separability tests may ignore light’s duality as a simultaneously functional and expressive tool. As authorship doctrines cling to the 19th-century models of individual control, they remain ill-suited to collaborative or process-oriented creation. As Sol LeWitt observed,^[39] conceptual art renders execution ‘perfunctory,’ prioritising conception over craftsmanship. When McCall’s technicians calibrate haze or Kusama’s audience applies stickers, creativity resides in parameters rather than handiwork.

Until the law acknowledges that originality can manifest in subtraction and authorship in curation, light art will remain a legal anomaly. As its radiance exposes the cracks in these doctrines, light filters through, and the rigid requirements of copyright law cast long shadows.

Suggested readings:

• Challenges of Installation Art, in Installation Art and the Museum: Presentation and Conservation of Changing Artworks (2013), pp. 11-34.
• Copyright’s Illogical Exclusion of Conceptual Art, Rochelle Cooper Dreyfuss, Columbia Journal of Law & the Arts, Vol. 39, No. 3 (2016), pp. 335-354.
• Understanding Intellectual Property: Expression, Function, and Individuation, Mala Chatterjee, Columbia Law School (2023).
• Why Do People Dislike Modern Art? A Misunderstanding of Contemporary Art Rhiannon Piper, 2023.

About the author:

Juliette is a final-year law student at the University of Bristol, graduating in 2025. She is interested in the evolving relationship between intellectual property law and artistic expression, which she hopes to explore further through an LLM next year. As a summer legal intern, she is contributing to research in this field while contributing to the Center’s Nazi-Looted Art Database.

References:

1. Caravaggio, The Martyrdom of Saint Matthew (1600), in Galleria Nazionale di San Luigi dei Francesi, Rome, Italy, available at https://en.wikipedia.org/wiki/The_Martyrdom_of_Saint_Matthew_(Caravaggio) ↑
2. Leonardo da Vinci, Mona Lisa (c. 1503–06), in Musée du Louvre, Paris, France, available at https://en.wikipedia.org/wiki/Mona_Lisa. ↑
3. 17 U.S.C. § 101 (2022). ↑
4. M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 432–33 (4th Cir. 1986); see also Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 411 (2017); 17 U.S.C. § 102(a) (2022). ↑
5. 17 U.S.C. § 101 (2022). ↑
6. Douglas Lichtman, Copyright as a Rule of Evidence, 52 Duke L.J. 683, 717 (2003). ↑
7. Laura Heymann, How To Write a Life: Some Thoughts on Fixation and The Copyright Privacy Divide, 51 Wm. & Mary L. Rev. 825, 829 (2009). ↑
8. 17 U.S.C. § 301(b)(1) (2022). ↑
9. Trenton v. Infinity Broad. Corp., 865 F. Supp. 1416, 1425 (C.D. Cal. 1994). ↑
10. 1 Melville Nimmer & David Nimmer, Nimmer on Copyright § 1.08[C][2] (2023). ↑
11. Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 Stan. L. Rev. 1343, 1383 (1989). ↑
12. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011). ↑
13. Berys Gaut, Creativity and Imagination, in The Creation of Art: New Essays in Philosophical Aesthetics 148 (Berys Gaut & Paisley Livingston eds., 2003). ↑
14. Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 411 (2017) (“The statute does not protect useful articles.”); see also 17 U.S.C. § 101 (2022) (“[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”). ↑
15. Jonathan Jones, Anthony McCall: Light Sculptures That Come Alive, The Guardian (June 19, 2024), https://www.theguardian.com/artanddesign/article/2024/jun/19/anthony-mccall-light-sculptures-alive-tate-modern. ↑
16. Munro v. Fairchild Tropical Botanic Garden, No. 1:19-cv-22944, 2020 WL 1321526 (S.D. Fla. Mar. 20, 2020). ↑
17. Munro v. Lucy Activewear, Inc., No. 0:18-cv-01926, 2018 WL 4854212 (D. Minn. Oct. 5, 2018). ↑
18. Berne Convention for the Protection of Literary and Artistic Works art. 2(1), Sept. 9, 1886, as revised at Paris, July 24, 1971, 828 U.N.T.S. 221. ↑
19. Munro v. Fairchild Tropical Botanic Garden, Inc. Complaint, No. 1:20-cv-20079, at 13 (S.D. Fla. Jan. 8, 2020) ↑
20. Mazer v. Stein 347 U.S. 201 (1954) ↑
21. Star Athletica, L.L.C. v. Varsity Brands, Inc. 580 U.S. (2017) ↑
22. Mazer v. Stein 347 U.S. 201, 217 (1954) ↑
23. Star Athletica, L.L.C. v. Varsity Brands, Inc. 580 U.S. 411–12 (2017) ↑
24. Id. at 412–13. ↑
25. Id. at 414. ↑
26. Arthur C. Danto, The Artworld, 61 J. PHIL. 571, 580–81 (1964). ↑
27. Jeff Wall, “Marks of Indifference”: Aspects of Photography in, or as, Conceptual Art, in Reconsidering the Object of Art, 1965–1975 247, 247 (Ann Goldstein & Anne Rorimer eds., 1995). ↑
28. Meshwerks, Inc. v. Toyota Motor Sales, U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008). ↑
29. 17 U.S.C. § 201(a) (Copyright Act). ↑
30. 17 U.S.C. § 101 (Copyright Act). ↑
31. Anthony McCall, Tate Modern, https://www.tate.org.uk/whats-on/tate-modern/anthony-mccall (last visited July 12, 2025). ↑
32. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011). ↑
33. See Yayoi Kusama, The Obliteration Room, Queensland Art Gallery & Gallery of Modern Art, https://perma.cc/5SKS-44J8 (last visited Feb. 7, 2020). ↑
34. See Association of Art Museum Directors, Guidelines for the Use of Copyrighted Materials and Works of Art by Museums, Association of Art Museum Directors (Oct. 11, 2017), https://aamd.org/sites/default/files/document/Guidelines%20for%20the%20Use%20of%20Copyrighted%20Materials.pdf%5Bhttps://perma.cc/KM6Q-B5X8]. ↑
35. 17 U.S.C. § 101. ↑
36. Id. ↑
37. See Pamela Samuelson, Allocating Ownership Rights in Computer-Generated Works, 54 Duke L.J. 147 (2004), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6848&context=faculty_scholarship. ↑
38. 17 U.S.C. § 201. ↑
39. Sol LeWitt, Paragraphs on Conceptual Art, Artforum, Summer 1967, at 79, https://perma.cc/57DT-U5VT. ↑