What should I know about copyright as a freelance artist/educator who facilitates workshops?

As a freelance artist/educator who develops and facilitates workshops and projects for institutions, what should I know about copyright and how can I protect my copyright and intellectual property (IP) rights?

Copyright law automatically gives artists ownership of a bundle of exclusive legal rights to control and protect use of their original works as soon as they are executed; including exclusive rights to reproduce, publish, disseminate, merchandise – mechanically and digitally – the shapes and forms and configuration and lines and colours and tones and perspectives of their artworks or other versions derived from them. The one major exception to this legal starting point of copyright ownership is an artist who makes original artwork during the course of their employment, as part of their job (e.g. a graphic designer working as an employee of a design consultancy, or an animator employee of the Disney Corporation); in which case the artist’s employer is automatically given copyright ownership.

From that legal starting point, copyright law allows the copyright owner of an executed work (or the prospective copyright owner of an unexecuted work) to make contractual agreements with others dealing with copyright (or prospective copyright). There are two principal types of contract: an assignment of copyright ownership; a licence to use the artwork.

In an assignment of copyright the artist/copyright owner transfers copyright ownership of their artwork to another.  Such an assignment/transfer means that the artist no longer owns copyright in their work, which is now owned by the other contracting party. It is unusual and unwise for an artist to assign the whole of copyright ownership in their artwork; but some do so ignorantly or because they are in a weak bargaining position.

A wiser course would be for an artist to decline an invitation to assign copyright, and suggest instead that the other party should take an exclusive copyright licence specifying precisely the nature and extent of the trading/merchandising activity the artist is licensing, over what geographical and time frames, in exchange for payment to the artist of specified fees.
An exclusive copyright licence means that the artist contractually agrees not to exercise her copyright by doing any trading/merchandising during the framework of the licence; but she will be free to do so at the end of the licence. Businesses sometimes start out thinking they need a copyright assignment from the artist, when they really only need an exclusive copyright licence to which they often readily agree when this is explained to them.

non-exclusive licence will often meet the business needs of a trader/merchandiser. The key difference from an exclusive licence is that with a non-exclusive licence the artist is only allowing certain specified activities to be performed by the licensee, but is not agreeing to refrain from exercising her copyright (including granting non-exclusive licences to others) during the framework of the non-exclusive licence. And of course specified fee payments to the artist would naturally be much lower for a non-exclusive licence than for the more expensive exclusive licence.

Can institutions own my IP/copyright?

Institutions can and sometimes do own an artist’s IP/copyright. To be legally valid, an assignment of copyright ownership must be executed via a hard copy document signed by the hand of the artist/first copyright owner. Such an assignment document is needed by the new/second copyright owner to prove their second copyright ownership when they trade in the market place with the copyright artwork.

If I retain IP/copyright but grant institutions unrestricted use – are they free to pass on my material/ideas/plans to other freelance educators to deliver the workshops I designed, within and outside the institution? Can they use my material to propose ‘their own’ workshops anywhere, based on what I have developed?

A copyright licence should specify in its terms and conditions as clearly and as comprehensively as possible what and where and when and how the licensee is permitted to use the artwork. Only the specified uses are licensed to be carried out. The artist should look at the words used in his/her licence to interpret their ordinary meaning to answer the question: if the words of the licence grant the licensee ‘unrestricted use’ without qualification, then the licensee might reasonably take it to mean that they can do the all the things mentioned.

Can I ensure that my ideas and plans stay with me and are not passed on to or used by others?

It is important to understand that copyright law does not protect ideas and plans for artwork. As stated earlier, copyright law protects the shapes and forms and configuration and lines and colours and tones and perspectives of artworks or other versions derived from them. In other words, copyright law protects the visual manifestation of artwork, not the ideas and plans that motivated the artwork.

For example, the idea of wrapping in material a bridge or building or coastline or other monumental physical thing is an idea/plan originated by Christo and Jeanne-Claude fifty years ago. Those artists are not copyright owners of their original idea. Anyone is free to use that idea to wrap in material any monumental physical thing without violating copyright because there is no copyright protection for that idea.

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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.