Copyright and the Visual Artist
What is copyright?
Copyright is a branch of the law of intellectual property. It is the legal right for the creator of an original work to exploit the work and to prevent others from doing so without permission.
The copyright owner has the exclusive right to make copies of the work, to make the work available to the public and may sell or licence these rights to third parties.
The law governing copyright in Ireland is contained in the Copyright and Related Rights Act, 2000.
What Works Qualify for Copyright Protection?
Copyright protects a wide range of works: original literary, dramatic, musical and artistic works; sound recordings; film; broadcasts; the typography of the published edition; databases and computer software.
In the case of the artistic work, effectively all forms and media are capable of protection, irrespective of artistic merit, as long as they are original. Some artworks are a combination of different protected forms. An installation, for example, may incorporate both artistic work and film, or artistic and literary works or film and music.
There is no fixed definition of “original”, but a work will normally pass the test if it is the result of a reasonable degree of “labour and skill or judgment” and if it is not merely copied from another source.
The amount of “labour and skill or judgment” required is modest. For example, technical drawings of simple parts for a loom, including a rivet, a screw and a stud, have been held to qualify as original works (1). Some things however are just too rudimentary. In a case involving rock band Adam and the Ants, three stripes of greasepaint applied to the face of a member of the band were held not to be a painting, and moreover to fail the originality test (2).
Mere copying is not always easy to assess in the context of an artistic work. In the Bridgeman Art Library case, in 1998, a US court decided that photographs of paintings were not original, as they were mere copies of the paintings (3). This case has not been followed in the UK, where it is generally believed that photography of painting is a skilled task and meets the requirements of originality, even though the purpose of the photographer is to produce a faithful copy.
Ideas and Principles
Note that ideas and principles underlying a work are not protected. While Christo would be entitled to prevent someone from reproducing his wrapped chairs, he could not prevent another artist from making other wrapped works. The idea of wrapping objects is not capable of protection. It is only the unique expression of the idea that is protected.
It is possible for a derivative work to enjoy protection. By employing sufficient labour and skill or judgment in transforming an existing work into something new, a fresh copyright can be obtained in the new work. It is necessary however to obtain the permission of the creator of the original piece, unless it is out of copyright. Sean Hillen’s Irelantis Suite provides some excellent examples of derivative work. Many of the collages in the suite use postcards by John Hinde to create surprising new pieces, undoubtedly qualifying for protection – as long as they do not infringe the copyright of Hinde!
(1) British Northrup Limited v. Texteam Blackburn Limited 1974 RPC 57
(2) Merchandising Corporation of America v. Harpbond Inc., 1983 FSR 32
(3) Bridgeman Art Library Ltd v. Corel Corp. 25 F. Supp 421, 1998
Copyright. Frequently Asked Questions
Does a work need to be registered in order to enjoy protection?
No. Copyright arises spontaneously on the creation of a work. There are no registration requirements.
Can you have more than one copyright in the same work?
Yes. It is not the case that for each protected work, there is just one copyright. It may be true of an original painting, but in a recorded song, for example, there is a copyright in the music, another in the lyric and a third in the sound recording itself. In a film, there is a multiplicity of copyrights, all normally vested in different persons, at least at the point of creation. They are usually brought together by the producer and sold to the distributor of the film.
For how long does copyright protection last?
Copyright protection in literary, dramatic, musical and artistic works lasts for the life of the creator and 70 years thereafter. For sound recordings, film, and broadcasts the term of protection is 50 years from the year of creation.
Who owns the copyright?
The first owner of the copyright in a work is the creator of the work, unless the work is created by an employee in the course of his or her employment, in which case the copyright belongs to the employer.
Misunderstandings as to ownership can arise when a work is commissioned. Commissioners often assume that because they paid for the work, they own the copyright. This is not the case. The copyright remains with the artist, unless it is assigned to the commissioner in a written agreement. However, case law in this area is developing the idea that by virtue of the contract between the parties, the commissioner will have at very least the right to use the work for the purpose for which it was commissioned, and may have a much wider set of rights. It is therefore prudent to spell out the position concerning ownership in a written agreement when the terms of the commission are being settled.
Another common misunderstanding concerning ownership involves making the distinction between the ownership of the piece of work, and the copyright in the work. Artwork is unlike other works, in that the primary act of exploitation is not usually publishing or recording, but sale of the original piece. It is not generally understood that when a work is sold, while the original piece passes to the purchaser, the copyright does not. Many infringements of the copyright in artworks arise innocently, because the purchaser of the work is unaware of this fact.
What does copyright ownership imply?
The copyright owner is legally entitled to prevent any third party from:
- Making any reproduction of the work (i.e., any form of copying, including copying by electronic means)
- Making the work available to the public, by any means (including all forms of publishing, posting on the internet, rental and lending, but excluding exhibition of the work)
- Making an adaptation of the work (such as a translation).
These rights are often called the “economic rights” of the creator. In addition, all creators of copyright material enjoy “moral rights”.
What are Moral Rights?
Moral rights were introduced in Ireland by the Copyright and Related Rights Act 2000. Long part of European law systems, the theory underlying them is that the creation of a work is a unique expression of the personality of the creator, who should continue to enjoy a certain nexus or connection with the work, even after the economic rights in the work have been transferred to a third party.
There are four types of moral right:
- The right of paternity – the right to be identified as the author of the work
- The right of integrity – the right to object to distortion, mutilation, or other derogatory modification of the work in a manner prejudicial to the reputation of the author
- The right of false attribution – the right not to have a work falsely attributed to you
- The right for a person, who commissions a photograph or film for private or domestic use, not to have the work made public.
These rights may not be assigned by the author or creator to any third party, although they can be waived in writing. They last for the copyright period and can pass under the Will of the artist. They do not apply to the works of an artist who died prior to the commencement of the Copyright and Related Rights Act 2000, viz., 1st January 2001.
What are the exceptions to copyright protection?
The law permits some uses of protected works without permission of the copyright owner. The most relevant exceptions, for an artist, are the following:
For an infringement to occur, there must be a “substantial taking” of the work. Insubstantial uses are therefore indirectly exempt. Of course this begs the question as to what is meant by “substantial”. Unfortunately every case must be judged on its merits, and so it is not always easy to determine precisely how much of a protected work can be used without permission. There are however some guidelines: “substantial” can be evaluated qualitatively as well as quantitatively; and uses can be evaluated cumulatively, so that “little and often” can amount to infringement. To say on the safe side of this issue, the amount of the work used should be insignificant.
Quotations and extracts:
A related issue, the use of “quotations or extracts” from a published work is permitted, provided the use does not prejudice the interests of the copyright owner, and is accompanied by an acknowledgement. Again however there is the question of how extensive a “quotation or extract” may be, and there are no clear guidelines on this.
Under certain conditions, it is permissible to use a work for one of the following three purposes:
- Research or private study
- Criticism or review
- Reporting current events
A use that is “incidental” is permitted. This would arise, for example, if RTE were to broadcast an interview with the Chairman of AIB Bank from the foyer of AIB Bankcentre, and in doing so, captured a work by Robert Ballagh hanging on the wall of the foyer. The use of the work in those circumstances would be regarded as incidental.
There are a small number of copyright exceptions peculiar to works of art. These are the following:
A building, a sculpture, a model for a building and a work of artistic craftsmanship, when situated in public or in a place open to the public, may be reproduced in two dimensions; photographed; filmed or broadcast, without infringing the copyright. In addition, those reproductions can be made available to the public (including by sale) without permission. Thus, you may take a photograph of the Spire in O’Connell Street, create a postcard from it, and sell the postcard. You may not however create miniature replicas of it for sale without infringing the copyright.
Advertising artistic work:
A work may be reproduced in order to advertise its sale. It is this exemption that enables auction houses to publish glossy sales catalogues of art works.
Where an artist has sold the copyright in a work, it is not an infringement to make a similar work, as long as the main design of the original piece is not replicated.
Can Copyright be Sold?
Copyright is a property right which – like other property rights – may be the subject of various types of transaction. It may be sold outright (by an “assignment”, which must be in writing), or licensed in whole or in part. Licences are often for a short term and cover only certain uses of the work. For example, you might grant a licence to a hotel chain for the use of a work in a newspaper advertising campaign, for a period of two years. While an assignment must be in writing, a licence can be verbal, although it is unwise to give any permission for the use of a work without some written evidence of the agreement.
Remedies and Penalties for Infringement.
Copyright infringement has both civil and criminal dimensions. On the civil side, breach of copyright is actionable at the suit of the copyright owner and a range of remedies are available, the most common of which are injunctions and damages. On the criminal side, certain acts in relation to the copyright work are characterised in copyright legislation as offences, for which penalties are prescribed. These offences include, not only the making of counterfeit works but also dealing in infringing works – by, for example, importing them, selling or renting them. Criminal penalties extend to fines of up to €127,000 and/or terms of imprisonment of up to 5 years.
The Theory Applied: The Creator’s Perspective
It is useful to look at the practical application of the copyright rules from two standpoints: that of the creator of the copyright work, and that of the user of the work.
The Creator’s Perspective: From the standpoint of the creator of a work, these questions are relevant:
- Am I sure that my work qualifies for copyright protection?
- Is there anything I can do to protect my copyright?
- What do I do if my rights are infringed?
1. Is the work protected?
As already mentioned, there is a threshold requirement of originality for copyright in artistic works. The determining factor is whether or not sufficient labour and skill or judgment has been expended. Some art forms will be more problematic than others in this respect. Take the object trouvée or found object. This might be just an arrangement of shells or tree roots or pebbles. Does this exhibit labour and skill or judgment? Some famous works have consisted of everyday objects simply taken out of context. Duchamp, for example, exhibited a bottle rack as a sculpture. Joseph Kosuth mounted a photocopy of a dictionary definition of the word “art”. The labour and skill in these works is minimal. It is impossible to say how they would be viewed by a court.
These types of work represent the exception rather then the rule. The work of most artists will be carefully planned and painstakingly executed, and will easily meet the originality requirement.
2. What can the creator do to protect his or her copyright?
Because copyright ownership does not depend on registration or other formality, artists tend to feel that there is little they can do to guard against infringement. This is not the case. Consider the following possibilities:
* Use a copyright notice and/or the copyright symbol ©
There is no reason why a work of art should not carry a discrete copyright notice, such as: “The copyright in this work remains the property of the artist, even after sale. It may not be reproduced without the permission of the artist”. The copyright symbol can also be used as a warning that the work is protected. It is normally used in this format: ©Robert Ballagh, 1988.
* Keep records of your works
A day may come when, in order to pursue an infringement, you will need to provide evidence that you created a work, and the date on which you did so. Theoretically at least, a way of doing this is to post a copy of the work to yourself by registered post, keeping the Post Office receipt and leaving the envelope unopened when you receive it. It is not certain however that anyone has ever succeeded in using this as a form of proof of ownership of copyright!
It will certainly however be of assistance in an action for infringement if you can provide good documentary or photographic records of your work. If you are concerned about proof, these records can be placed with a reliable third party for safekeeping, the date being recorded by the third party, who should be willing to testify to receipt of the material. Another way of putting the matter beyond doubt is to register the works with the US Copyright Office. This can be done online, at modest cost. It will not give you any additional protection for the works, but will act as proof positive of your claim to ownership at the date of registration.
* Reflect all agreements in writing.
This is possibly the single most important step that an artist can take in order to safeguard his or her copyright. Many cases of infringement fail because an artist agreed verbally to permit certain uses of a work, but did not adequately articulate the terms of the agreement and did not commit them to writing. If you agree that a work may be used, for example, in an advertisement, the agreement should be confirmed in a letter, in which there is set out at the very least a description of the work, the fee to be paid, the medium in which the advertisement will appear, the duration of the permission (or number of reproductions), the territory in which the permission will operate, and any other conditions of concern to you as artist, such as the quality or type of reproduction. Of course you may instruct a solicitor to draft a Licence Agreement, but in most cases a simple letter from the artist to the Licensee will suffice.
When a work is commissioned, it is imperative that the terms be set out in writing. Normally a commission is a lucrative and important engagement for an artist and it is worth asking a solicitor to draft an agreement or to approve an agreement furnished by the commissioner. A key issue in most commissions is the ownership of the copyright. The commissioner tends to assume that the ownership of the copyright will pass with the work. The artist on the other hand often wishes to retain the copyright, and grant only a licence, but is fearful of disappointing the commissioner. It has to be said that most commissions are offered on the understanding that the copyright will pass with the work. The artist should clarify the position at the outset, and the fee should be measured accordingly.
* Join a collective rights management society
Collective management bodies represent different types of author, collecting royalties for the exploitation of the copyright in their works. They normally also offer copyright information, advice and support in relation to infringements. In the visual arts sphere, the Irish Visual Artists’ Rights Organisation (IVARO) was formed in 2005. Its establishment has been welcomed by Irish artists and it is gradually building the copyright-related services it offers to its members.
3. What action can I take if my copyright is infringed?
It is important that you act immediately. Delay can be construed by the law as acquiescence.
You may instruct a solicitor. However that may not be necessary, at least initially. You can approach the infringer and complain about the infringement, pointing out that you are the copyright owner in the work, demanding cessation of the infringement and seeking compensation. The complaint can initially be a verbal one, but if so, it should be followed with a letter. You should make it clear that if the response is not satisfactory, the matter will be put in the hands of your solicitor.
IVARO aims to provide support for its members in relation to infringements. It will offer an opinion on whether the act complained of appears to be a legal infringement. It may also help to draft an initial letter of complaint, and assist the member in finding appropriate legal representation.
The Theory Applied: The User’s Perspective
If you wish to use all, or a material part of a protected work, it is likely that the permission of the copyright owner will be needed. In this context “use” means reproduce by any means, including electronically; make available to third parties by any means, including electronically and in the on-line environment, and adapt the work, for example, by translation.
Artists often use other protected works. Sometimes these are other visual works, but they may be literary or musical works, or other types of protected material, such as computer software.
There are some simple questions that can be asked, to help establish whether a work can be used without permission.
1. Is the work a protected work?
See the section of this text captioned “What works qualify for copyright protection?” Note that permission is needed for reproduction of a copy, as well as the original.
2. Is the work still within the copyright term?
See the section of this texts captioned “For how long does copyright protection last?” If the copyright term has expired, the work may be used freely without permission. Note however that if you are relying on a photograph of the work, or a copy published in a book or periodical, then although the original work may be out of copyright, the photographer and the publisher may have rights that may require clearance.
3. Is the proposed use covered by one of the exceptions to copyright?
See the section in this text captioned “What are the exceptions to copyright protection?”
If the answer to the first two questions is “yes”, and to the third question is “no”, then the licence or permission of the copyright owner is needed in order to avoid a breach of copyright.
How to obtain permission.
It is necessary to find the copyright owner or his or her agent or representative, and secure either an assignment of the copyright, or a licence to use the work for the intended purpose. You will normally be required to pay a fee.
It is not always possible to find the copyright owner in order to obtain permission. Increasingly however the development of collecting societies, which represent artists and other types of author, makes this easier. In Ireland, music composers are represented by IMRO (Irish Music Rights Organisation) and MCPS (Mechanical Copyright Protection Society). PPI (Phonographic Performance Ireland) represents recorded artists and performers. In the literary field, ICLA (the Irish Copyright Licensing Agency) represents authors and publishers. NLI (Newspaper Licensing Ireland) represents newspaper proprietors. And, of course, IVARO represents visual artists.
These collecting societies act as a starting point for the purpose of obtaining permission. Some societies will process the application for permission and the grant of a licence. Others will simply pass on the request to the author, if he or she is a member of the society. The system of collecting societies is not however complete in Ireland and in some instances it is still necessary to find and negotiate directly with the author.
It is important to ensure that when a licence or permission is obtained it is sufficient to cover all of the proposed uses of the work. While a permission may be verbal, it is unwise to rely on a verbal exchange. Ensure that the permission is secured in writing, and that the terms are clear.
The Artist’s Resale Right: An EU Directive
A European Union Directive on the Artist’s Resale Right, or Droit de Suite, was due to be implemented in all EU member states by 1st January 2006. The Irish Government was late in implementing the Directive. On 13th June 2006, when the hearing of legal proceedings taken by Robert Ballagh against the State for failure to implement the right was imminent, the Minister for Enterprise, Trade and Employment hastily produced a set of Regulations – entitled the European Communities (Artist’s Resale Right) Regulations 2006.
The Regulations provide the right in a very bare form. They are intended to be a temporary measure only. The Government proposes to produce more detailed substantive copyright legislation on the topic at a later stage.
The Regulations provide living artists with an unwaivable right to a royalty on the resale of their original works of art. The right applies to re-sales in which an art market professional is involved. It does not apply to private sales. The royalty is payable by the seller. It does not apply to sales for less than Eur3,000.
The royalty is calculated as follows:
|4%||for the portion of the sales price up to||€50,000|
|3%||for the portion of the sales price from||€50,001 to €200,000|
|1%||for the portion of the sales price from||€200,001 to €350,000|
|0.5%||for the portion of the sales price from||€350,001 to €500,000|
|0.25%||for the portion of the sales price over||€500,000|
|There is a “cap” or maximum royalty of €12,500.|
Artists may collect their own royalties directly from auction houses and dealers. Many have elected however to mandate IVARO to collect on their behalf. IVARO has reciprocal rights agreements with similar societies in other countries that enable it to collect resale royalties due to its members from re-sales in those countries.
Copyright Harmonisation: Copyright under International and European Instruments
In the current global environment, in which material can be disseminated world-wide at the click of a mouse, it has become very difficult to contain counterfeiting of creative works. The standardisation of laws and inter-state co-operation on enforcement are increasingly necessary to support the rights of creators.
As a result of a wide-ranging programme of harmonisation initiated by the European Commission some 15 years ago, copyright rules are largely similar in all EU Member States. Citizens of all EU countries enjoy the same rights in each member state as nationals of that country.
Internationally, the Berne Union, to which all EU Member States and most of the developed world belongs, has succeeded in reaching a remarkable level of agreement on standard copyright rules. As in the EU, there are conditions of reciprocity of protection for citizens of all member states of the Union.
Additionally, member states of the World Trade Organisation adhere to the TRIPs Agreement of 1994, which lays down minimum standards of intellectual property protection and enforcement rules, including appropriate remedies for infringement.
In the last decade, copyright law in Ireland has been the subject of dramatic change, primarily as a result of these European and international initiatives. The result has been to considerably enhance the position of Irish artists in relation to rights in their works.
By Linda Scales
Linda Scales is a solicitor and a copyright specialist. She advises a number of publicly-funded arts bodies and institutions. She also lectures in media law topics in the School of Art History and Cultural Policy at UCD. She is the author of a number of articles on arts-related legal issues, including the Guidelines for Board Members of Arts Boards, published by the Arts Council in 2006. Linda is a co-founder and board member of the Copyright Association of Ireland, and the Irish Visual Artists Rights Organisation.