Ignorantia Lex Non Fit Defensia

Copyright in the visual arts is the inherent right of a creator over his/her artistic work to prevent other people copying that work.

I received a novel and remarkable press release last month, issued by the Design and Artists Copyright Society, which reads as follows:

PRESS RELEASE

13 JUNE 1985

DESIGN AND ARTISTS COPYRIGHT SOCIETY LIMITED RESPONSE TO THE GUARDIAN DIARY 7 JUNE 1985 COPYRIGHT: WHY THE PROBLEM?

Copyright in the visual arts is the inherent right of a creator over his/her artistic work to prevent other people copying that work. Generally, art is regarded as a luxury, though without it civilization as we know it would lose much of its quality. The ‘behind the scenes’ reality is that in order to produce this luxury artists, more often than not, have to be very hard working professionals who are entitled to the same consideration with regard to protecting the copyright of their work as any other person. Their work belongs to them and to no-one else, hence the use of the word ‘copyright’.

The problem seems to stem from the fact that people regard artists as ‘dilettantes’ rather than ‘professionals’. As a result, the credibility of the artist as a viable working person falters, and aspects of his/her work – such as ‘copyright’ – become something which some people might not wish to take seriously. The purpose of DACS is to assist artists in collecting copyright dues on any of their work which has been reproduced. No-one has the right to reproduce the work of any artist until fifty years after his/her death unless the artist, or his/her estate, has given permission for the reproduction. If people do reproduce or copy the work of an artist with or without his/her/estate’s permission, the artist/estate is then entitled to a fee. Quite reasonable when one thinks about it.

Having said this, any organization such as DACS would nevertheless recognize the fact that, in the field of art virtually any issue could be open to debate, and for this reason it keeps in constant touch with artists, both on its committee and off it precisely so that such issues can be debated. The fact, however, is that there are copyright laws which exist specifically for the purpose of protecting the work of artists. To date these laws have been largely ignored mainly, it seems, because there has not existed an organization or public body which would be capable of making sure that these laws are implemented competently and consistently. As a result, there has developed a lax attitude towards copyright and the visual artist and sadly, it is the artist who has been losing out.

It can only be supposed therefore that at this stage there is a misconception as to what copyright actually is; also as to what rights an artist does have when he/she creates a work of art, and finally, the sort of protection that he/she is legally entitled to once he has created it.

It is precisely with these considerations in mind that DACS – the Design and Artists Copyright Society – has been set up. It does realize however that at this early stage of its existence it is going to have to lay a great deal of emphasis on actually informing people about the realities of copyright. With time it hopes that there will be a proper understanding of what ‘copyright’ actually means so that it will be possible for artists to collect what is rightfully their due: all this without the fear of incurring the wrath or the displeasure of the infringer of the copyright.

DACS Council of Management, 13 June 1985
However worthwhile an exercise it may be to thump the tub in favour of DACS (I have done so several times in the past), the purpose of drawing attention to this release is not that, but to explore the remarkable nature of its expressed purpose – to inform people about the realities of copyright in the visual arts; and the equally remarkable nature of such statements as ‘Generally, art is regarded as a luxury, though without it civilisation as we know it would lose much of its quality’, and ‘artists. . . are entitled to the same consideration with regard to protecting copyright of their work as any other person’, and so on. Why should the Council of Management of DACS think it necessary or desirable to issue this release in almost mitigatory terms?

DACS has been very active (and successful) since its establishment in 1983 and, apparently, is causing a noticeable degree of embarrassment and irritation amongst those who, it would seem, have wrongly taken for granted their right to exploit for their own commercial end visual artwork without any reference to the artist/copyright owner for permission; often, through plain ignorance, sometimes with a Nelson touch (I see no copyrights) or through deliberate disregard for known or suspected copyright ownership by another. And I am not here just referring to some mendacious mercantile manufacturer of, say, calendars or Christmas cards, but those professionally involved in the administration of the visual arts in the UK who ought to know better. Propriety demands that names are not disclosed here. but experience in the field over the past 15 years or so evidences few administrators and/or institutions within the UK who have a decent working knowledge of copyright proficient even to grasp the fundamental proprieties involved in using a copyright work. This is not a criticism, merely a statement of evidence of a fact. And a fact which begins to explain why the DACS press release is so remarkable.

To give one example of the incredible ignorance which abounds in practice – and this is a real example, suitably disguised to protect the innocent: the owners of a large collection of works of contemporary artists issued postcard reproductions of the works they had bought, borrowed or had donated, without seeking prior permission of the artist/copyright owner. When challenged, on behalf of the artists or their heirs, the administrators defended their actions by the now classical, but nevertheless mythological, retort ‘But we bought the works so we own the copyright’. Oh dear, here we go again. May I take this opportunity to give all owners, keepers or administrators of artworks or collections, the following draft notice to nail to the doors of their offices, of their printers’ workshops, and of their publishers:

‘Copying, Printing and Publishing Can Be Dangerous. Stop and Think.’

  • Did the artist die in 1934 or later, or is the artist still alive; if so, then:
    • Transfer of ownership of the artist’s copyright to me can only have been lawfully given in writing, signed and dated by the artist/copyright owner.
  • Do I have anything in writing from the artist/copyright owner authorising me to copy, reproduce or publish the copyright works; if not, then
    • I must not:
      1. reproduce the work in any material form
      2. authorise others to reproduce the work in any material form
      3. publish the work
      4. authorise others to publish the work.

    All of these acts are a breach of copyright. I must get written permission to do these things.

  • Knowingly committing a breach of copyright is a criminal offence. I could be fined, or sent to prison, or both; have to pay over legal costs, compensation, and any profit I have made.
  • Contact DACS, the artist or artist’s heirs, to find out who owns copyright and to arrange for permission to be given.’

Artists themselves have evidenced a dangerous ignorance of this vital tool of professional practice, and this has both contributed to their own exploitation by others, and exacerbated the vicious circular mythology of copyright. A recent case, again real but disguised, illustrates this and is in fact what has prompted DACS to issue this press release. An illustrator made a cartoon using one particularly well-known work of a contemporary artist; the cartoon was a parody/satire/burlesque of the artist’s original work and was clearly intended to be recognised as such. The cartoon was commercially published for millions to see. When challenged, on behalf of the copyright owner, for compensation for an unauthorised exploitation, the response, on behalf of the illustrator, was both to deny that copyright had been infringed on the grounds that the illustrator had put a great deal of original skill and labour into the making of the parody, and to aver that it was a well-established custom for cartoonists to make such parodies without let or hindrance from copyright owners.

However understandable this response may appear to be, it is still wrong, for the following reasons. Any original copyright artwork parodied or satirised in another work which makes substantial use of the original (form, line, shape, perspective, movement, subject matter, i.e. skill and labour of the original artist) is, thereby, infringed and is entitled to protection from such unauthorised exploitation, or compensation for it. It may well be that, as in the case in point, further original skill and labour is put into the making of the parody by the subsequent artist. That may mean that the new, later work acquires its own copyright in addition to the original. Nevertheless, the new work cannot be used without permission of the copyright owner of the original work. A useful and illustrative analogy (quoted by Michael F. Flint in his excellent work A User’s Guide to Copyright, published in 1985 by Butterworths) is the translation into a foreign language of an English literary work. The translation, requiring a great deal of original skill and labour which itself justifies acquisition of copyright by the translator, is nevertheless an infringement of the original author’s copyright. For ‘translation’ of literary works, read parody/satire of visual artworks.

Further comments on the cartoon case mentioned above have been that the copyright owner’s challenge was ludicrously petty, small-minded and pretentious, or that the well-known artist/copyright owner could easily afford to ignore the free publicity-giving infringing cartoon. Fair comment perhaps, especially when ignorance abounds to the extent and degree discussed above, but are there not two important overriding points of principle involved? Firstly, all artists are entitled to copyright protection for their original works and, clearly, it is always the better established and more well-known artists whose works will be used (or abused) initially; pursuing their protection, as a matter of principle, establishes that principle for all artists. Secondly, making that point with what may appear to the recipients to be a proverbial sledgehammer, begins to break the vicious circle of ignorance – for all in the visual arts field.

In furtherance of knowledge, I refer everyone to Michael F. Flint’s book (mentioned above), which covers copyright across the arts and not just in the visual field, and to the guide I wrote specifically dealing with visual artists and craftsmen: ‘The Visual Artists Copyright Handbook’ (published by Artlaw Services in 1983, now obtainable from DACS: telephone 01-247-1650). And here I declare an interest: not in royalties from the sale of either book (Flint’s are his own, and all profits in mine go to DACS for the benefit of all artist/copyright owners); but in the elimination of the evil of ignorance.

© Henry Lydiate 1985

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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.