Claim it From DACS

£300,000 is available to meet artists’ claims for unauthorised use of their copyright works by publishers and broadcasters in the UK.

The money has been collected by the DACS, the Design and Artists Copyright Society, which was established in 1983 as a not-for-profit collecting society. If you are a painter, sculptor, printmaker, illustrator, photographer, cartoonist, animator or a designer, and your work has been used in television programmes broadcast on BBC1 or 2, ITV or Channel 4, or has been reproduced in books, magazines or journals, you may have a valid claim for a share of the £300,000 held by DACS.

This money has been paid to DACS by the broadcasters and publishers to compensate the creators of visual images for unauthorised uses of their works: Payback 2001. When a television programme is broadcast on terrestrial television in the UK, and simultaneously on cable abroad, or when an image printed in a book is photographed and made into a slide, all such ‘secondary uses’ of the work can entitle the artist to copyright licence fees. DACS negotiates and collects these fees from the relevant organisations on behalf of all artists and designers, and then distributes the money to them if they make a valid claim to DACS. In 2000 DACS collected £300,000 in this way, and any of this money which remains unclaimed by artists and designers whose works have been used in this ‘secondary’ way will be rolled over to the next Payback.

DACS is keen to encourage any artist or designer in doubt to make a claim. As DACS Chief Executive Joanna Cave says ‘we want as many artists as possible to benefit from this money. We have tried to make the claiming process as straightforward as possible this year, and people are encouraged to fill in a form and make a claim. Last year, many claimants were pleasantly surprised to receive an unexpected windfall from us’.

The amount of money likely to be paid back to artists varies depending on the nature of the claim, but could run into thousands of pounds per person. DACS has also made it possible for claimants who failed to register their forms with DACS for last year’s Payback to submit a claim for payment out of the funds rolled over to this year.

Potential claimants should understand that the UK’s copyright laws are straightforward: the originator of the artwork is automatically the owner of the copyright in the work; so long as its shape, form, configuration and perspective (the visual image) is not substantially derived from a work made by someone else. In other words, if the artwork is ‘original’ (in the sense just described), the artist should be the copyright owner. Only copyright owners or their licensees have the right to reproduce or merchandise their works, or to authorise others to do so. Any use of a copyright work not authorised by the copyright owner would be a breach of the artist’s copyright, and financial compensation would be payable. DACS exists to protect the rights of visual artists and designers in the UK, and has the resources and expertise to invigilate the marketplace for unauthorised uses both primary and secondary (as described earlier). DACS’ statement of key purpose reads ‘we are a not-for-profit organisation and exist to secure and enhance the copyright interests of visual artists and to provide the user community with an efficient service by obtaining mandates, issuing licences, collecting revenues and distributing income’; and its core values include ‘responding to the needs of users and other stakeholders, providing quality assured services, and using best business principles and practices’.

Would-be users of visual images in the commercial marketplace find it very cost effective and useful to have a single point of contact on behalf of artists and designers with whom they can directly negotiate copyright clearances. DACS offers this service, and has links with a world-wide network of sister collecting societies in America, Eastern Europe, the Far East and Africa. Through such collecting societies, substantial additional income is generated for artists and their estates (copyright lasts for 70 years after the artist’s death).

In the very near future, DACS may well be the organisation that is asked by the UK Government to perform an additional collecting role – for the collection and payment of royalties to artists when their works are re-sold at a profit. Throughout most of the EU there exists the law called ‘droit de suite’ – the artist’s re-sale royalty right – and the EU Commission is poised to require the four EU states who do not have such a law (including the UK) to introduce legislation so as to harmonise the economic rights of artists throughout the EU (This issue has been extensively covered in previous Artlaw columns.) The UK Government’s preparations for introducing the artist’s re-sale royalty right have included the Arts Council of England’s research conducted during the past year into how such a right could be cost-effectively and efficiently administered, and royalties collected and paid out. In some countries where the artist’s re-sale royalty right already exists, copyright collecting societies also undertake this task; in other states, a new collecting society has been established to do so, or the Government has decided to enforce the right itself through the state taxation system. Whether or not DACS will be used in the UK for this purpose remains to be seen, but its successful administration of Payback 2001 will undoubtedly contribute significantly to the eventual decision about re-sale royalty collection and payment in the UK.

Claims for Payback 2001 can be made via email: payback2001@dacs.co.uk; or by telephoning DACS on 020 7336 8811

© Henry Lydiate 2001

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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.