The law of copyright is vast and complicated: what follows is a brief outline of the law as it affects visual artists who should seek professional legal advice on any problems they may have.
What is copyright?
Copyright does not give you a legal right to copy your work: it gives you the right to stop someone else copying it without your permission. This protection is given by the Copyright Act 1956 and applies to ‘artistic works’ (not ideas) which means paintings, sculptures (includes any cast or mound made for the purposes of sculpture), drawings, engravings (includes any etching, lithograph, wood-cut, print or similar work not being a photograph) and photographs (means any product of photography, but not cinematograph film): and works of ‘artistic craftsmanship’ – what works of craft are to be regarded as ‘artistic’ depends on the author’s aim when creating the work, rather than on any objective test, (a dress or cake may well not be ‘artistic’ for these purposes).
Artistic merit is irrelevant, but if the work contains anything libellous, immoral, obscene or irreligious, the law will not give it copyright protection. Performance artists are not ‘artistic works’ and are not protected by copyright, but are helped by the Performers’ Protection Acts 1958 and 1963 which make it a criminal offence commercially to record, film or broadcast a performance with the performer’s written consent.
If your work is an ‘artistic work’, copyright protection will only be given if it is ‘original’ – the product of your own skill and labour and not substantially derived from an existing work so that it ‘comes so near to the original as to suggest that original to the mind of every person seeing if, Keating’s copies of existing Palmer’s are not ‘originals’, despite the considerable skill and labour involved in their execution, (but they do not infringe copyright because Palmer’s copyright has expired); and the painting based on the film-star’s photograph (see issue 2) is probably not an ‘original’ (and may well infringe someone’s copyright). There are also special rules about ‘qualified persons’ and ‘published works’ which ensure that an alien, resident in a country not having copyright laws similar to ours, who first publishes work in that country, does not gain copyright protection in the United Kingdom.
How long does copyright last?
If an artistic work is entitled to copyright protection, it lasts throughout the author’s life and for 50 years from the end of the year in which s/he dies. But the copyright in an engraving first published after the author’s death lasts for 50 years from the end of the year of publication. The copyright in a photograph taken before 1/6/57 lasts for 50 years from the end of the year of first publication: photographs taken in 1926 or before are not copyright; the photograph of the film-star, taken in 1956, is copyright until the end of the year 2006; and photographs taken on or after 1/6/57 are copyright forever, if never published. Merely exhibiting an engraving or photograph is not, but issuing authorised reproductions of the work to the public for sale is, publication; and issuing a limited edition of silk-screen prints is not publication (for these purposes), because each print, though similar, is an original and has not in fact been reproduced – but post-cards of such a print, issued for sale, would be publication of that print.
Who owns the copyright?
The author of the work is the first owner of the copyright, unless the work is made under a contract of employment or apprenticeship in which case the employer or master owns it. The copyright in commissioned photographs, portrait paintings, portrait drawings and engravings is owned by the commissioner – the person offering the author something of economic value to make the work. The first owner is free to enter into any contract with any person in order to vary the above rules.
The owner may give up his/her copyright, in part or in full, by leaving it to someone in his/her will, selling it or giving it away. If all the copyright is to be given up, it must be done in writing and be signed by the owner; if only part is to be given up, it need not be done in writing. When a painter sells a canvas (not being a commissioned portrait), he retains all his copyright; if the buyer wants to produce unlimited numbers of post-cards of the work, the painter’s written permission must first be obtained, because the painter is giving away all his protection in relation to post-card reproductions; if the buyer wants to produce only 100 post-cards, the painter’s oral permission will suffice.
The first copyright owner of the film star’s photograph was the photographer (he asked her to pose for him, and he was not employed to take it). He may have sold his copyright to the book’s author or publisher or to anyone else. The painter should, therefore, try to obtain the present copyright owner’s permission before he executes the painting, otherwise his work may infringe the copyright. He could, of course, wait until 2007.
What constitutes an infringement?
Anyone who, without the copyright owner’s permission’, reproduces the work in any material form, publishes the work (this means issuing to the public- not selling), includes the work in a TV broadcast, or, knowing that the copy is unauthorised, imports, sells, hires out, or by way of trade offers for sale, exhibits in public or distributes the work. Infringement occurs only if the whole or the essence of the work has been used – a parody W it is not an infringement. Certain uses of the copyright work are not infringements. Fair dealing for research or private study, and for criticism or review (if title and author are acknowledged). Reproducing for the purposes of a judicial proceeding or report or it. Sculptures and works of ‘artistic craftsmanship’ permanently situated in a public place or in premises to which the public have access can be drawn, painted, engraved, photographed, filmed or broadcast by TV; and, which the exception of photographs and broadcasts, such reproductions can be published. Any artistic work can be included in any TV broadcast or film, if used for background. A copy of’ a two-dimensional artistic work may be made in three dimensions, as long as it would not ‘appear to persons who are not experts in relation to objects of that description to be a reproduction of an artistic work in two dimensions’, (which appears to give free reign to sculptors and performance artists, except in relation to performances and sculptures of, say, Tretchikoffs infamous green lady). An artist who has given up his/her copyright may make an artistic work so as to reproduce an earlier work of his/hers, by using a mould, cast, sketch, plan or study made for the purposes of the earlier work – as long as s/he does not repeat or imitate the main design of the earlier work.
What are the remedies for infringement?
If the owner’s copyright is infringed, there are several remedies against the infringer(s) (the unauthorised copyist or the person who instructs him/her). The owner may claim: damages, monetary compensation for loss of royalties, payable by the infringer; and additional damages, payable by the infringer to compensate for the owner’s injured feelings – usually payable where the infringement has been deliberate in order to punish the infringer; or an account of profits, payable by the infringer when the infringement is innocent but has made the infringer a lot of money – as in the successful suit against George Harrison for innocently copying the song ‘He’s So Fine’ when he wrote and published ‘My Sweet Lord’, the ‘original’ authors being awarded an enormous sum on account of the profits Harrison’s ‘copy’ had made; or the full value of the infringing property (reproduction plates, unsold copies, screens, presses etc) or delivery up of such property to the copyright owner; or an injunction to restrain a would-be infringer from doing so, disobedience of which would be contempt of court and would render the person in breach liable to be fined or imprisoned. In addition, certain infringements are criminal offences. The information given so far relates to ‘artistic works’ and works of ‘artistic craftsmanship’ which have copyright protection in the United Kingdom. What remains to be discussed is how to protect art works which do not have such protection, either because the infringement occurs outside the United Kingdom or the injury is not an infringement of copyright.
© Henry Lydiate