Copyright and the Visual Arts
This article relates primarily to copyright as it affects visual artists and craftspeople. For further information on copyright as it relates to designers, writers and musicians, please see the list of contacts below. Different considerations will also apply in relation to industrial designs or inventions and specific guidance should be sought. Of course, this article is for guidance only and is not an authoritative statement of the law.
If I have created a work of art what do I own?
The piece of art and in almost all cases, the copyright.
What does copyright protect?
Copyright protection attaches to works which fall in to various categories including, for instance:
- graphic work;
- photographs;
- sculpture;
- jewellery;
- tapestry; and
- mixed media.
Does copyright exist in an idea?
Copyright protection exists only in the form in which the idea is expressed. Accordingly, copyright does not exist until the work has been recorded in some material form by the artist or maker. It also follows that if someone has the same idea as you, and represents the idea on canvas etc., there is no infringement of copyright unless your work itself is copied. The work can be recorded in any material form - it can, for example, be computer generated.
Does my work have to be of any particular standard before I enjoy copyright protection?
In general terms, no. There is no test of artistic quality which requires to be passed. To be entitled to copyright protection, however, the material must be original.
How do I protect my copyright?
There is no specific method of registering copyright in a piece of artistic work. What you have to prove is:
- when the work was generated, so as to prove that it pre-dates any copy; and
- that you are the author.
One simple way of proving the date is to post the work or a copy/photo of it to yourself in a sealed recorded delivery envelope. Remember of course not to open the envelope! If this is not practical then you could take a photograph, recording the date, or ask someone to sign a statement witnessing when the work was created. To prove that you are the author of the work, you should, if practicable, sign the original work.
If I sell my work, who owns the copyright?
Copyright is owned independently of the physical material on which it is reproduced. For example, if you are commissioned to create a mural on someone else's site using their materials you would not own the mural but you would own the copyright. Accordingly, if you sell your work you will retain ownership of your copyright, unless you negotiate an agreement to the contrary (an exception to this rule is where the work is created in the course of your employment, in which case the copyright will generally be owned by your employer).
What happens if my work is inspired by someone else?
Where one person conceives an idea for an artistic work, but engages someone else to execute the idea, the person who had the original idea is not "the author" of the work. The person who actually generated the work owns the copyright. Of course copying the actual work of another would be an infringement of copyright.
What if I incorporate someone else's work in, for example, a collage?
Whereas the collage itself may be protected by copyright, you may be infringing on someone else's copyright by incorporating elements of their work. You will therefore need their consent. You may be able to negotiate such consent for payment of a fee. Some incidental inclusion in another work may be allowed.
Okay, so my work is protected by copyright; what good does this do me?
You can prevent others from copying the work or adapting it in some way. This includes reproducing the work in any material form and storing it in any medium by electronic means or making a copy in three dimensions of a two dimensional work (or making a copy in two dimensions of a three dimensional work). If they infringe on your copyright, you will probably be entitled to damages and/or interdict - an injunction. Interdict/injunction is the name for the court remedy ordering someone to stop doing something unlawful.
How long does copyright last?
Currently 70 years from the end of the calendar year in which the artist dies as well as, of course, the entire currency of the artist's life.
What about moral rights? What are these?
Whereas the rights previously identified are designed to provide you with an ability to be paid for your work, moral rights are intended to protect your reputation and the recognition of the work as yours.
The rights created are as follows:
- The right to be identified as the author of a work - the paternity right. The identification must be clear. To be included in this right, however, you will have to "assert it". Basically this means asking in writing to be fully credited.
- The right to object to derogatory treatment of your work which could prejudice your reputation - the integrity right. This right does not require to be asserted.
- The right to restrain false attribution of a work - i.e. to prevent someone from suggesting that their work is yours. Likewise this right does not require to be asserted.
- If you commission a photograph or a film for private purposes, you can prevent that work being exhibited in public.
How can I exploit my copyright?
You can transfer it to another party. Alternatively you can license it - meaning that you allow another party to use it for a limited purpose subject to agreed controls and appropriate financial arrangements. For example you might allow someone to reproduce your work for a limited period of time in a particular application on the basis that a royalty is payable.
Here are some points to bear in mind when entering into an agreement:
- Never enter into an agreement which you don't understand. Don't accept the explanation that any provision is "just a legal technicality".
- Look for the best deal - but don't over-negotiate.
- Make sure you can trust the person you are dealing with. Remember you will have limited opportunities. If you are in any doubt, try to make enquiries about the other party before you enter into any agreement.
- Make sure the contract is appropriate. It really depends on the circumstances. There are pros and cons of long contracts. On the one hand, they may provide security. On the other hand, do you want your hands tied for an extended period?
- Retain your copyright if at all possible. If you are selling more than a physical work i.e. assigning copyright, or licensing it, this should be reflected in the price.
- If there is going to be a provision for royalties to be paid, ensure that the level is fair. While an advance royalty can be appetising, look for hidden costs. Insist that the party with whom you are entering into the agreement agrees to an "open books" policy.
- Ensure that you have artistic control over how the work is exploited.
What about entering into an agreement with a gallery?
Again, check out the party you are dealing with. Think carefully about the length of the contract. Make sure there is an obligation on their part to promote your work. Who is to pay for the promotion costs? Make sure that your works are handed back at the end of the contract. There should be a right to terminate the agreement in appropriate circumstances.
If in doubt, consult a lawyer or someone with specific expertise in this field. Don't be railroaded. If the person with whom you are dealing has any integrity they will expect you to protect your own position. Remember that it is a lot easier to draw up a satisfactory contract than to get out of an unsatisfactory one.
Useful Contacts
- National Artists Association, Spitalfields, 21 Steward Street, London E1 6AJ
- British Copyright Council, 29-33 Berners Street, London W1P 4AA. Tel: 0171 371 9993
- Design and Artists Copyright Society Ltd., St. Mary's Clergy House, 2 Whitchurch Lane, London E1 7QR. Tel: 0171 247 1650
- Alexander Stone & Co. Solicitors, 4 West Regent Street, Glasgow G2 1RW. Tel: 0141 332 8611 Fax: 0141 332 5482
This article was written by Legal Services Agency, with input from Alexander Stone & Co. Solicitors.
It is reproduced here with permission.
Please read our disclaimer.
This article is for guidance only, it is advised that you contact a solicitor for legal advice relating to your individual situation.