Knowledge bank

As a UK artist you automatically hold copyright in your original works of art. This guide introduces the basic concepts of copyright law and offers practical advice on protecting your work against possible infringement.

Introduction

As a UK artist you automatically hold copyright in your original works of art.

This guide introduces you to the basic concepts of copyright law and offers practical advice on how to protect your work against possible infringement.

It has been produced by London legal firm Briffa, that specialises in intellectual property and information technology issues.

Copyright basics

Copyright gives those who invest the skill and effort to create original work the right to prevent others copying them. For that reason it is often referred to as being a 'negative right'.

Copyright subsists automatically in original works. In the UK (unlike the United States). there is no official register for copyright. 'Original' means that the work originated from the author: that it is not copied from somebody else.

There is no copyright in ideas or concepts, but rather in the expression of these ideas. For example, a general theme for a piece – eg a statue of a man holding a carrot – has no copyright itself. Only once the statue is made and takes a particular, specific form, will it be protected by copyright. Any drawings or plans for the statue will be protected by design right and/or copyright.

Qualifying works

What works will qualify for copyright? The following are the main areas that concern you as a visual artist:

• Artistic works–original works of art with aesthetic elements
• Photographs
• Sculptures, collages, architectural works

How long does copyright last?

• Copyright protection lasts for up to 70 years from the date of the death of the creator of the work
• Copyright in sound recordings, films, broadcasts and cable programmes, and computer-generated works lasts for 50 years, running from the end of the year in which the work was created

Rights

Copyright
The copyright owner has the right to prevent others:

• copying the work
• issuing copies (known as distribution rights)
• renting or lending the work
• performing, showing or playing the work to the public
• broadcasting the work
• making an adaptation of the work

These are known as 'restrictive acts' – other people can only do these things if they have permission of the copyright owner. By doing a restricted act a person will have infringed copyright.

Moral rights
Moral rights are a special set of rights which belong exclusively to authors of literary, dramatic, musical or artistic works and to film directors. They are designed to protect the artistic sensibilities of such authors. They do not apply to works created during the course of employment. Moral rights cannot be transferred but they can be waived and authors are usually requested to do so.

Moral rights give you, the creator:

• the right to be identified as the author of the work
• the right not to have derogatory treatment of your work
• the right to prevent false attribution of your work
• privacy in photographs taken for purely private use

Performing rights
Performers (models, passers-by, dancers, etc) also have a set of rights specific to their performance. The first set of rights relate to their live performance. These can be infringed by:

• recording, broadcasting or including in a cable programme service of their live performance, without their consent

Performers also have certain rights in connection with their recordings. They can prevent:

• copying, issuing to the public, rental and lending of their recorded performances without their consent

Often the owner of the copyright and the performers' rights can be the same person. If in doubt, get your models to sign a release form.

Copyright protection

© is the international sign for copyright. For example '© Jo Smyth 1970', shows that in 1970 Jo Smyth created a particular work and asserts her originality in that work. The use of the copyright symbol does not create copyright protection in itself. It's a mechanism which has three main functions:

• It shows who the author is, when the work was created and that the author is asserting their copyright.
• It puts others on notice that they are not entitled to copy the work without the author's permission.
• It's a statement that all legal formalities have been complied with to allow copyright to exist in the work.

It's often suggested that you can get copyright protection by posting a copy of your work to yourself in a sealed envelope. This does not give you copyright protection, but does help in proving the date the work was created. However, once the envelope is opened it has served its purpose. It's far better to lodge your designs with a trusted third party who can act as an independent witness to corroborate your story of creation.

Whatever you do it's important to keep your design story (ie the steps you took to go from blank canvas to finished piece):

• Date your work.
• Use the © symbol along with your name and the year of creation.
• Take photographs of your piece as it develops and these records are dated.
• Keep the rough drafts, sketches, scribbles and notes which lead to the final work – all of these will help you to show your original creation.

Infringement

If you think your work is being copied write to the infringer and request that they stop their activity. Seek specialist legal advice if you feel that you have suffered losses as a result. Legal proceedings may be an option.

If you use the copyrighted work of others in your own work you may be guilty of infringement. Copyright prevents others from making a 'substantial copy' of the work. This is assessed on a qualitative and not quantitative basis. Even by using the smallest detail of another's work, if that detail can be said to go the heart of that work, you will have infringed copyright.

If your use of an image is only incidental then you may legitimately use the work. eg if you photograph a child's room with a Pokemon poster on the wall. As long as your intention is to show the room not Pokemon specifically, then you can continue to use the image.

It gets trickier if you manipulate an existing work. Depending on your treatment and use of it, it could constitute an infringement of copyright and of the creator's moral rights – every artist/creator of works has the right to prevent derogatory treatment of their work.

International agreements

Copyright is protected abroad under the international system called the Berne Convention. Each country that subscribes to the Convention (currently around 150) agrees to treat works coming from other member countries as if they were originated in their home country. Therefore, an English textbook being sold in Germany would be protected in Germany, as if the work had been originated there.

Internet

The laws of copyright apply equally to works on the internet. It is an infringement of copyright to place a book, graphics or song on the internet without the owner's consent.

There is always a certain amount of risk involved in placing your work in an environment that facilitates copying. However, by marking your work with proper notices and by regular surveillance of your competitors, the risk of loss due to infringement should be minimal.

If you have your own website this will also be protected by copyright. Firstly, there is copyright in the front end "look and feel" of the website – its artistic aspects. This is an amalgam of the various copyrights in the text, drawings, video clips, music in addition there will also be copyright in the software which powers and operates the website. This is usually held by the software developer.

Ownership & licensing

Like real property, intellectual property can be bought or sold, it can also be licensed.

Employers will automatically own the copyright of all work that employees create during the course of their employment. While this occurs automatically due to the law, it is normally good practice for employers to set this out in their contracts of employment.

The author can transfer copyright by agreement for a set fee or in return for a royalty payment. If you get into this think carefully about what you are selling – is it the copyright in the piece itself, or would you rather sell the rights of reproduction only?

Briffa

Lee Gage is a solicitor at Briffa, a firm of solicitors specialising in copyright law. It can provide you with personalised, expert advice and assistance with the protection and maintenance of your work. Services include:

• Draft commissioning agreements.
• Enforcing copyright from the first "cease and desist letter" all the way up to full High Court proceedings.
• Maximising your copyright by licences and assignments.
• Advice on the complex copyright issues involved in a wide range of specialist copyright areas including music, film, publishing, multimedia, interactive television and broadcasting.
• Designprotect – specialist copyright protection package.

To contact Briffa T: +44 20 7288 6003, info@briffa.com, www.briffa.com

Links

www.patent.gov.uk
Official copyright advice from the UK Patent Office.

www.intellectual-property.gov.uk
Official UK intellectual property law site.

www.designprotect.com
Specialist copyright protection package from Briffa.

www.dacs.co.uk
Copyright licensing agency for UK artists and designers.

www.acid.co.uk
Anti Copying in Design membership site.

Josephine Lawton

Advises on the enforcement and exploitation of a broad range of intellectual property matters at intellectual property law firm Briffa www.briffa.com.

First published: a-n.co.uk April 2003