Is Your Copying Right?

An important and valuable one-day seminar entitled 'Copyright: Is Your Copying Right?' was recently organised by the Institute of Art and Law,

in association with the Art Newspaper and artlaw specialist solicitors Stephens Innocent. The conference aimed at artists, public and private administrators and interested lawyers, dealing with all aspects of Copyright law including Moral Rights, the new Publication Right, the EU Public Access Directive, computers and the Internet. Key issues raised will be of interest to readers.

Photographing Artwork
Robin Fry has been a specialist copyright lawyer since 1980 when he joined the team of volunteer lawyers offering the free legal advice and help service run by Artlaw Services. He joined the firm of Stephens Innocent in 1983, is a senior partner, and also acts as the dedicated legal adviser to The Museums Association and The Museum training Institute.

In the course of his presentation on general copyright issues, Fry considered the tricky question of whether photographers were entitled to acquire copyright in their photographs of artworks. The general legal starting point for acquiring copyright is that the work, ie the photograph, must be an 'original', which means that a photograph of a print or drawing would probably fail the 'originality test' because the photograph slavishly reproduced someone else's 'original'. However, because photographs of sculpture and paintings require a substantial degree of technical and aesthetic skill, there is a strong legal case to be made that such photographs are indeed 'original' works which can acquire their own copyright. If this contention is legally correct (and we are not aware of its having been tested in UK courts), then it would mean that photographs of sculptures and paintings - including old masters and antiquities whose own copyright no longer exists - would acquire copyright for the photographers, lasting for their lifetimes plus 70 years. This raises important considerations for collectors, museums and galleries who own paintings and sculptures that are out of copyright, as well as for such works that are still protected by copyright.

EU Public Access Directive
Peter Weinand leads the intellectual property law team at the firm of Farrer and Co solicitors, where he has been a partner since 1995 specialising in copyright, multimedia and technology law.

Weinand considered the EU Commission's proposed new Public Access Directive, which seeks to address gaps in the law relating to IT. The Commission has taken the view that the intellectual property laws of the 15 member states need harmonising and reforming. In particular, there is a need to protect copyright works against economic abuses in the digital media, to facilitate legal action to prevent such abuses; there is also a need to strengthen copyright owners' protection by giving them new rights in relation to their use of encryption and digital watermarking devices; finally, there is need for rights management information.

These points are addressed in the Directive, whose underlying theme is to protect investment in copyright works and to equip the creative industries in the EU to deal with potential economic abuses. The Directive proposes: to prohibit the unauthorised use of even minor quotations from copyright works (insubstantial quotations are permitted at present); to create a new right to stop unauthorised 'communication to the public' (at present, this is not allowed without authorisation, but there are some grey legal areas that need clanking by legislation); to amend the number of acts that are currently allowed without the copyright owner's permission (for example, to allow public museums and galleries to reproduce copyright works for direct or indirect economic gain without the copyright owner's permission). These changes are currently being developed by the EU Commission and, if approved, are likely to be enacted into law within the next few years.

Museums and Galleries
Emma Williams is a freelance consultant to museums and commercial picture libraries and is currently acting CEO for the British Association of Picture Libraries; she specialises in copyright and licensing, and addressed some practical issues involved.

Williams reported that a survey conducted by the Museums and Galleries Working Group in 1996 had revealed the need for more and better education and information for museum and gallery personnel, from warders to curators and directors. For example, warders need to understand copyright law sufficient to enable them to deal with visitors wishing to photograph exhibits; archivists and conservationists in photographing copyright works for their own purposes; as well as administrators involved in producing educational resources, marketing and merchandising materials.

Good practices were suggested, including:

  • Sourcing the date photographs were taken, since copyright law has changed many times over the past 150 years and the law that applied when the photograph was taken will usually determine the legal position today.
  • Documentation for new acquisitions is vital in the resolution of disputes over ownership, copyright and moral rights.
  • Standard forms of contract need to be developed and used to allow access to works for the purpose of photographing them.

New Publication Right
Helen Simpson has been the Registrar at Southampton City Art Gallery since 1994 and her duties include the administration of loans, photography, rights and reproductions, copyright and the documentation of the collection.

Simpson explained the workings of the new Publication Right introduced into UK law in 1996 (see AM 204), and its practical implications for museums and galleries. In essence, the new Publication Right is similar to copyright) and arises when an unpublished copyright work is first published after its copyright period had expired. Ownership of the new Publication Right is automatically acquired by the person or body who first publishes the work within the European Economic Area and lasts for 25 years thereafter. Key issues for museums and galleries include: is the work one to which the new Publication Right can apply, if so, has copyright expired in the work; if so, has the work been published previously; if not, then when such a work is shown/published, the new Publication Right will arise and last for 25 years.

The most important issue is what constitutes 'publication':

  • issuing copies to the public.
  • making the work available via an electronic retrieval system.
  • renting or lending copies to the public.
  • exhibiting or showing the work to the public.
  • televising the work.

While this new right was intended to give museums and galleries new opportunities and incentives to market their collections more effectively, it can also lead to loss of control over works in collections for 25 years. The new right may also have a negative impact on scholarship and research, as well as on future loan agreements.

Copyright and the Artists Family
John Mucha is the grandson of Alphonse Mucha. He was educated and brought up in Prague, which he left in 1968, and is a banker in the City of London. In 1991 he and his mother established the Mucha Trust and Mucha Foundation in order to preserve and make available to the wider public his grandfather's artistic heritage. In 1993 the Mucha Trust set up Mucha Ltd, a company dedicated to exploiting the copyright and trademark opportunities of Mucha's work.

Mucha's presentation offered a unique perspective: he sees his inheritance as a responsibility and a duty; not necessarily as being solely for personal benefit. All income derived from copyright, trademark and branding activities is used to preserve and protect Mucha's work and to fill in any gaps in the collection. In particular, the aim is to prevent over-exploitation or unsuitable and inappropriate uses of Mucha's works and images.

Mucha died in 1939, which meant that in the USA, his copyright ended in 1989, and so is in the public domain'. In Japan, Mucha is generally regarded as an icon and, although his copyright also expired there in 1989, it should have been extended to cover the period of hostilities during the war in the Pacific by virtue of the Treaty of San Francisco. Unfortunately, that Treaty did not allow former Soviet-bloc countries to benefit from that agreed extension of copyright; Mucha (a Czechoslovakian national) and his copyright heirs have been fighting to gain international acceptance of the extension of the copyright; without success, to date.

IT
Simon Stokes is a solicitor specialising in IT and the law for the firm of Allen and Overy. He referred to the EU Public Access Directive (see above) and stressed that UK law currently offers good protection to copyright owners against unauthorised uses by IT, and advised that the key issue was one of enforcement; and that was a technological rather than a legal issue, where watermarking and encryption were the keys to successful protection in the marketplace. Stokes stressed that UK law protects all copyright works used on the Internet and by other electronic means but that there were doubts about the quality of legal protection elsewhere in the world: hence, the proposed EU Directive.

Moral Rights
Ruth Redmond-Cooper is Director and founder of the Institute of Art and Law, is a solicitor and has published extensively in the areas of artlaw and comparative law, specialising in French law. She is editor of Art Antiquity and Law.

Redmond-Cooper gave an overview of moral rights law which was introduced into the UK as recently as 1988, and teased out some key issues. One of the difficulties in the UK is that, unlike France and other countries that enacted moral rights' laws many years before the UK, there have not been to date any reported court cases giving definitive interpretations of the meaning of the statutory provisions. We do not know, for example, whether the legal test of whether a work has been subjected to 'derogatory treatment' (any addition, deletion, alteration or amendment) will be subjective or objective. In other words, if a work is altered from its original finished state, will the law judge the question of an infringement of the artist's moral right (not to suffer derogatory treatment) by what the artist feels (subjective test) or by what a reasonable person would think (objective test). In Canada and France the test is subjective. For example, in France, a work by Bernard Buffet (which involved his having decorated four panels on a refrigerator) was 'altered' by the panels being taken off the fridge by the owner of the work, to be re-sold; the French courts granted an injunction to stop the work being dismantled.

In this session, Lucie Lambrecht, a Belgian lawyer specialising in artlaw, offered her perspective and advised that Belgian moral rights law was very close to the French law which (unlike UK law) did not allow artists to waive (forego) their moral rights for any purposes. Belgian law also gives artists a further moral right (not given in the UK or France): to have access to their works to enable them to exercise their copyright (in other words to compel the owner of the work to allow the artist to see the work and copy it if desired).

Moral Rights: the Artist's Perspective
Jacqueline de Jong is a Dutch painter of many years standing and Tom Weyland is a Dutch art lawyer. Together they gave what can only be described as a performance work: while Weyland gave an oral presentation about moral rights, citing cases where artists have successfully prevented abuses to their works, de Jong displayed three pieces of her work and spent the entire length of Tom's talk creating new works by overpainting her originals: a fascinating and challenging experience for all present. Naturally, a lively debate followed, focusing on artists' rights to alter their own work at any time (when is a work completed?) and owners' rights to do anything they like with their own property. Hence, the need for moral rights' legislation to regulate the inevitably competing claims.

Getting Permission to Copy: DACS
Rachel Duffield is CEO of the Design and Artists Copyright Society (DACS) which is the copyright collecting society for the visual arts in the UK. DACS is a non-profit making organisation founded by artists in 1983, and represents over 40,000 artists and their estates in matters of copyright in the UK.

Duffield explained how DACS works and why artists need such an organisation: artists do not generally create work to be reproduced, and therefore need some mechanism for controlling and dealing with such events when they do occur; DACS acts as go-between for artists and would-be publishers and users. DACS deducts 20% of any copyright licence fees negotiated for usage: fees are standard for 'basic' infringements (unauthorised reproductions); it administers library rights; conducts litigation on behalf of artists where necessary; receives annual lump sums from the Broadcast Licensing Agency on behalf of its members; acts as lobbyist in the UK and abroad in connection with legal and other developments affecting artists intellectual properly rights; produces information and education material; and has many sister organisations throughout the rest of the world, through whom foreign infringements are dealt with.

The Litigation Viewpoint
Stuart Lockyear is a partner of Fry in Stephens Innocent, and has handled notable cases including the misattribution of artworks (Egon Schiele and Thomas Gainsborough), and many copyright cases including acting as prosecutor in the criminal courts. He also gives general legal advice on radio and television.

Lockyear conducted a case study demonstrating, blow by blow, how a breach of copyright case can develop; from the copyright owner's perspective as well as from the alleged infringer's viewpoint. Space and discretion do not allow the details to be disclosed (a real case was used), but may be revisited in the near future. Key lessons drawn from experiences are: would-be infringer's deceive themselves if they believe they will not be found out; if they are, they should immediately consult a lawyer specialising in artlaw matters (since delays create costs for the copyright owner for which the infringer will eventually have to pay); unauthorised use of copyright work can also be a crime (for which up to two years imprisonment can be imposed).

© Henry Lydiate 1998

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.