Advertising and marketing art: Copyright confusion

If a work of art is on display, for sale or simply on public viewing, can the gallery owner or administrator reproduce it, in a catalogue, on a postcard or on a flyer without the copyright owner's permission?

The answer to this question is yes, in certain specific circumstances.

However, there exists a common misunderstanding that gallery owners and administrators have carte blanche to reproduce works that hang on their walls or occupy their space; not so.

It is important for artists and administrators to understand the circumstances in which reproduction is allowed by law without permission so that artists may know their rights, thereby improving their bargaining position when asked for copyright permission, and so that owners and administrators do not find themselves unknowingly infringing copyright and having to pay out unforeseen costs for innocent and ignorant breaches of the law.

There are two sections of the Copyright, Designs and Patents Act 1988 which lay out the circumstances in which a work on display for sale or public viewing can be reproduced without permission. The first, Section 62, says that to reproduce buildings, sculptures, models for buildings and works of artistic craftsmanship, in graphic form, as a photograph or film or transmitting it by broadcast or cable, does not infringe the copyright in the original work: if the work is permanently situated in a public place or in premises open to the public. This is a trade-off between the public and the artist - a trade-off that most artists are happy to accept. The artist's work situated in a public place is experienced by a vast number of people - it becomes part of the environment and as such it also becomes part of public culture and therefore, in this case, the law allows that others may reproduce it in certain forms without first obtaining the permission of the copyright owner. However, reproduction is only allowed using certain means; no-one is allowed to reproduce a Henry Moore in the local park as a sculpture - only as a graphic reproduction, photograph, film or transmission by cable or broadcast. In addition, the work must be on permanent display. For example, if a broadcasting company were to make a film which included footage of a temporary installation in a public gallery or in the local park, the company would still need to obtain the permission of the copyright owner first.

Another potential problem arises over works which are part of permanent collections but which are not on permanent display. This is the case with many works in public and private collections but the law is quite clear that for the work to be reproduced without permission it must be permanently situated in a public place or in premises open to the public - not temporarily on display while it spends most of the time in a private space or in a store room. Therefore, the administrator of the gallery needs to be sure that works they want to reproduce without permission - as post-cards or posters advertising the gallery, for example - are on permanent display. Better still, the administrator should discuss the reproduction with the copyright owner first, since even where the permanence of the work is undoubted the artist will still have moral rights in the work - the right, for instance, to object to derogatory treatment of the work. The artist could use this right to object to the cropping of the image, poor quality colour or misleading perspective.

It is important to note that these exceptions for works on public display do not apply to graphic works (drawings, paintings and prints) nor to photographic works. Essentially, 3-D works on permanent public display can be reproduced without permission; 2-D works cannot.

The other misunderstanding in this area occurs with the reproduction of artistic works which are for sale. This is Section 63 in the Act, which was designed to clear up the position where someone who had acquired an artistic work wanted to sell it and needed to advertise that sale. The obvious examples here are catalogues produced by auctioneers to advertise the works for sale. Unfortunately this new part of the law has been widely misinterpreted by arts' practitioners, many of whom wrongly believe that no restrictions exist in relation to marketing works for sale. The Act only says that it is not an infringement of copyright in an artistic work to copy it - if those copies are issued to the public for the purpose of advertising the sale of the work. It does not say that copies may be issued to advertise the work - in some broad sense. The wording rules out reproduction for marketing and merchandising; to argue, as some do, that these activities add value to the artistic work is irrelevant - the copyright owner's permission must be sought first.

To make copies of artistic work for purposes such as postcards, posters and catalogues, gallery administrators still require the permission of the copyright owner. Even when posters, postcards and catalogues have been legitimately produced to advertise the sale of the artistic work, should such reproductions subsequently be sold either by members of the public or by the gallery, they become infringing copies unless the copyright owner has given their permission for the selling of such reproductions.

It is important that administrators and artists make themselves aware of the law concerning the reproduction of works in exhibitions, whether for sale or not. This will avoid galleries having to make last minute deals with copyright owners to compensate them for breach of copyright which any merchandising will cause. It will mean that artists may be able to earn some added income by using their rights to negotiate royalty payments for any merchandising activity and artists can gain greater control over the reproduction of their work, both quantitatively and qualitatively.

Even when the administrators of galleries and salerooms ensure that they have gained the required permission to reproduce the work they have in their collections or that they intend to sell, the artist's moral rights are not impaired. If the gallery wants to crop the work, reproduce it in colours which distort the original, use a ludicrous perspective, the artist retains the moral right to object and stop the reproduction of the work. When an artist's work enters a gallery for sale or as part of a collection the gallery owner or administrator does not have carte blanche to reproduce that work; copyright permission is needed in the majority of cases and moral rights always exist to require the gallery to consult the artist about the quality of any reproductions that may be authorised.

Checklist for administrators, artists and artists' estates:

  1. Is the artist still alive or deceased within 70 years of the planned exposition? If so, copyright and moral rights exist. Liaison needed between copyright owner/artist/artist's estate and administrator in relation to reproductions planned.
  2. Is the planned exposition to be permanent or temporary? If permanent, 2-D works may not be reproduced without the copyright owner's permission, whereas 3-D work may be. If temporary, no work may be reproduced without permission (except to advertise its sale). Liaison needed between copyright owner/artist/artist's estate about security/invigilation arrangements.
  3. Assuming any planned reproductions have been authorised, have the artists been consulted about their quality? If not, the artist's moral rights may have been infringed. Liaison needed between artist/artist's estate and administrator!

© Henry Lydiate 1991

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.