Copyright, Art and Madness: a historical-legal analysis

Abstract

Art produced by psychiatric patients occupies a singular place in the history of culture and law: generated at the intersection of clinical practice and artistic creation, it challenges the categories through which the legal field classifies and protects intellectual works. This article analyzes, through a historical trajectory spanning from the first European collections of Art Brut in the early nineteenth century to the Museum of Images of the Unconscious (MII), founded in Rio de Janeiro in 1952, how debates on the copyright of psychiatric patients — whose works oscillate between art and clinical documentation — have been structured. The guiding question is: how are the ethical and legal limits established for the protection of these patients’ copyright? The article departs from the hypothesis that the absence of specific public policies for the protection of persons with intellectual disabilities, as required by Article 227, § 2 of the Brazilian Federal Constitution of 1988, directly contributes to the ambiguity surrounding the circulation of these works. Using the hypothetical-deductive method and bibliographic and documentary research, the article demonstrates that the obstacle to authorial recognition was always institutional and historical, never normative. It concludes that existing legal instruments provide sufficient basis, lacking only the effective institutional will to apply them.