What is copyright?
Copyright is a form of intellectual property that allows individuals such as artists, composers and writers to own the fruits of their creativity. It entitles the owner to royalties and a say in how a work is used when it is reproduced by other people.
Reproduction includes copying, printing or including it in a film or TV programme. It also extends to posting copies of the work on the internet, and making a copy in three dimensions of a two-dimensional work, such as the construction of a building according to an architect’s plans.
How long does copyright last?
In the UK, copyright lasts for the lifetime of the artist plus 70 years after their death.
Other territories may give shorter periods of protection, but usually not less than the life of the artist plus 50 years. There are some special provisions which apply to older unpublished works.
Sound recordings, ﬁlms, broadcasts and cable programmes are protected for 50 years from the date of making or the date of release if the release occurs within 50 years of it being made.
Copyright in typographical arrangements of a published edition lasts for 25 years from the end of the year in which the edition was ﬁrst published.
Who owns copyright?
The ‘author’ of a work (ie the person who created the work) is generally the first copyright owner. It is possible to have joint owners where two or more authors have created a work and their contributions are not distinct.
Different rules apply where works are commissioned or created in the course of employment, and the commissioner or the employer may be the first owner. This depends upon the terms of the contract, so it is important to read these carefully.
The date the work was created is also important, as the position of the first copyright owner differs under the 1988, 1956 and 1911 Copyright Acts.
It can also be assigned (where it is transferred wholesale) to third parties, and licensed (where use of the work is allowed but copyright remains with the owner).
What rights does the copyright owner have?
The copyright owner of an artistic work has the following exclusive rights:
- Reproduction right, or the right to copy the work
- Distribution right, or the right to issue copies of the work to the public
- Rental or lending right, or the right to rent or lend the work to the public
- The right to communicate the work to the public by broadcasting or electronic transmission
It is up to the owner whether anyone else can do any of the above with their works.
How do I copyright my artwork?
Copyright protection is automatically given to works as soon as they are fixed in material form (ideas are not protected, only the permanent expression of those ideas). You do not have to go through any legal process or registration to establish it.
That said, it is still good practice to keep records and evidence of the artistic works you have created. You will make people aware of your claim to copyright ownership if you put the symbol © with your name and the year of publication somewhere on the work. This is not proof that you own the copyright, but it may prove helpful if you bring an action for copyright infringement at a later date.
You could consider sending yourself a copy of your work, clearly date stamped and by special delivery, and keeping the envelope unopened or depositing copies with a solicitor.
Although this does not prove that the work is created by you, it can still be useful to show the court that the work was in your possession at a particular time. This could help with an infringement claim.
What types of artwork are protected by copyright?
Copyright covers artworks such as painting, graphic works, photographs, sculptures, collages,works of architecture and works of artistic craftsmanship.
Most artistic works are protected irrespective of artistic quality. This is a requirement for works of architecture and artistic craftsmanship, however.
Is copyright law the same throughout the world?
No. The protection granted to artists is different from country to country and is dependent upon national legislation.
What happens to my copyright when I die?
You can leave your copyright to whomever you wish. You may choose to leave it in all of your artwork to one person, or to an institution such as a gallery or a museum. Alternatively you may leave it in certain works to one individual, and others to another, or specify a percentage share for different named individuals.
If you do not leave a Will specifying who is to receive your copyright when you die, your estate will be considered intestate and therefore subject to the English Rules of Intestacy.
You should seek specialist advice on drafting a Will from a solicitor.
When is copyright infringed?
Copyright is infringed when someone carries out one of the owner’s exclusive rights without their permission, and an exception does not apply.
This can be in relation to the whole or a substantial part of the artistic work. What is “substantial” is determined by a qualitative test, not a quantitative one, which means that there may be an infringement even if a small but distinctive portion of the original artwork is copied.
What do I do if my copyright is infringed?
If you own the copyright, you are entitled to bring proceedings against the infringer for infringement.
A number of civil remedies may be granted if the claim is successful: these include an award of damages or an injunction which orders the infringer to stop using the work immediately.
Bringing an action before the court can be costly and time consuming, however. You may therefore wish to resolve matters with the party infringing your copyright by agreeing an adequate settlement.
In all circumstances, you should seek specialist legal advice before pursuing a claim.
Are there instances where copying is allowed?
There are a number of uses of artistic works which are allowed in limited circumstances without the permission of the copyright owner.
There are a great deal of these exceptions, and a number of conditions apply.
You should always seek individual legal advice before relying on any such exception.
What are moral rights?
Moral rights are a bundle of personal rights given to creators or subjects of certain types of work, namely literary, dramatic, musical, film or artistic works. Introduced in the United Kingdom by the Copyright, Designs and Patents Acts 1988, they came into effect on 1 August 1989.
- the Paternity Right, or the right of an artist to be identiﬁed whenever their work is commercially published, exhibited to the public or included in a broadcast or ﬁlm. This right lasts for as long as copyright in works.
- the Right of Integrity, or an artist’s right to object to derogatory treatment of their work. This right lasts for as long as copyright in works.
- False Attribution, or the right not to be identiﬁed as the creator of a work created by someone else. This right lasts for the artist’s lifetime plus a further 20 years.
- the Right of Privacy, or the right of someone who has privately commissioned a photograph or film not to have copies of the work exhibited, broadcast or issued to the public. This right lasts for as long as the resulting photograph or ﬁlm remains in copyright.
Who owns moral rights?
Moral rights belong to the author of an original artistic work. They can be waived (given up), but they cannot be assigned (sold) to a third person. They therefore remain with the creator of the works even if the copyright doesn’t, and are passed to the artist’s estate on the death.
Introduced by the Copyright Design and Patents Act 1988, moral rights only apply to artists living on or after 1 August 1989.
Artists are frequently asked to “waive”, or give up, their moral rights in a written document. It is highly inadvisable to waive your moral rights: not only would you no longer obtain the benefits moral rights confer, you would also no longer have the right to receive a byline and be identified as the author of your own work.
When do moral rights apply?
Moral rights only apply to the copyright protected works of artists who were alive on or after the 1 August 1989, irrespective of whether the artwork was created before this date.
These rights do not necessarily come automatically, however: in order to obtain the benefit of the Paternity Right, the artist of a copyright protected work must “assert” it, by indicating their wish to exercise this right.
This can take many forms, but commonly it includes a statement in a contract to the effect of “[the artist] hereby asserts his/her right to be identified as the author of [name of work]”. This contract should be with the party you seek to make liable.