New Legal Rights

Parliament gives artists two new legal rights: to earn extra cash from their work; and to exert exclusive aesthetic control over it.

‘These rights are given to all artists for their lifetime and pass to their heirs for 50 years after death’, writes our legal correspondent, Henry Lydiate.

What a news item that would make – if such a law had been passed. But it has! It’s what our copyright law has been giving artists for over a hundred years – if only artists knew it. The almost universal ignorance amongst artists (and administrators) about the existence of the most fundamental economic and aesthetic legal right they possess is amazing.

Copyright is about cash and control. Ask any musician and I guarantee they’ll at least know about ASCAP and PRS; any novelist, playwright or poet and they’ll know something about their performing-, film-, or translation-rights: any rock musician about the importance of royalties. Why are visual artists and arts administrators so unaware and/or confused? Access is central to the issue.

When an artwork is sold the artist does not automatically sell the copyright. Many artists assume that when they sell work the copyright is included in the sale. It isn’t. Many buyers equally assume that when they buy they also get the copyright along with the work. They don’t. These two fundamental misunderstandings exist because as soon as an artist sells the piece, access to it is lost. If the artist cannot physically get at the work, it’s difficult even to think about copying it or preventing copies being made. In reality, the new owner of the piece can physically control who sees it and therefore select and authorise who may make reproductions of it; this denial of access can even extend to preventing the copyright owner (the artist) from seeing and, if desired, reproducing it. It’s easy to see how this very real practical situation can lead artist and buyer to believe that the artist no longer owns the copyright, and that the buyer does. Not so. A simple example occurred recently: an artist sold a piece last year, wanted to issue postcard reproductions of it, and the buyer flatly refused to allow the artist to make a transparency for that purpose. In law, the owner was within his legal rights: he owns the property, which is the work; the artist owns the intellectual property, the copyright, which is the right to authorise copies and prevent unauthorised copying and is not the right to have physical access to the work in order to make copies. Crazy? Had the artist made a transparency before selling the piece, she could have issued the postcards without reference to the owner of the piece.

Ignorance doesn’t end there. Because owners can control access to work and artists don’t make it clear that they still own the copyright, owners go on to assume that they can authorise others to make copies – and often sell the right to do so. Here’s another example: an arts organisation bought a piece for its collection and some years later authorised its publication on the cover of a novel (very badly done); the artist was never consulted (he only owned the copyright!), discovered this horror in W.H.Smith’s one day, and hit the roof. The arts organisation’s response to the aggrieved artist went along these lines: we bought the work from you for a lot of money, surely we bought the copyright, too; we must, at least, have bought the right to authorise such use of the work; well, how much of our fee do you want; it’s impossible for us to get the books withdrawn from the market; but, if they are withdrawn, do you want compensation as well? Unauthorised exploitation can be very serious and is becoming more prevalent. Indeed, some copyright infringements of this nature are also criminal offences.

Many well-established organisations and institutions innocently and bona-fide allow access for reproductions to be made. How many times do you see photographs of work being taken in galleries, both public and private? There is now a considerable market for the publication of reproductions, particularly from major collections. It is very rare to see copyright credit being given, and one wonders whether permission has been given by the copyright owner or, indeed, if the gallery has investigated and clarified the copyright position at all.

Some may argue that the artist is lucky to have work reproduced and especially to be offered a fee or compensation for free publicity. That’s not the point. The artist in the above case didn’t want money; serious aesthetic damage had been done to his reputation and standing because the reproduction was awful and the association between the tatty novel and his work was professionally demeaning.

It’s clear that copyright is about two things: cash and aesthetic control. Proper exercise of copyright by artists can bring in cash for the artist and enable aesthetic control to be maintained by the artist. That ‘mythical’ news caption is deadly accurate.

Commercial use of work is well known to European and American artists. Sale of copyright licences by artists authorising commercial reproduction of their work is very prevalent outside Great Britain, and can produce or augment a reasonable income for many artists. National and international copyright agencies, privately and publicly owned, exist in most other European countries. Many such agencies not only police the unauthorised reproduction of work throughout the world, but also promote artists work and negotiate deals for artists based on authorised and controlled commercial use of work – the agency taking a percentage of the negotiated fee. The artists simply register their work with the agency which gets on with the job (just like PRS – Performing Rights Society – for musicians). Such agencies are entirely separate from agents and galleries in the sale of work. Examples of commercial use are obvious: photographs; brooches and badges; textile, wallpaper and fashion designs; prints and xerographs of all kinds appearing, say, on adverts and packaging. (Incidentally, many artists in this country are starting to spot their images or pretty close likenesses appearing on hoardings, posters, postcards, album covers, TV commercials, films and so on. Visual imagery seems to have improved, it is conjectured. If so, why?)

Points to remember

  1. the creator of an artwork owns the copyright.
  2. the copyright can only be lost when the owner signs a written document selling it or giving it away.
  3. when artists sell or give away their work they don’t lose their copyright.
  4. buyers don’t automatically buy the copyright when they buy work.
  5. copyright lasts for the artist’s lifetime, plus 50 years (for the artist’s heirs).
  6. Photographers are subject to different rules (see excellent, recent article by Adrian Barr-Smith in Camerawork).

What to do

  1. always put the international copyright symbol on your work, along side your signature and date of creation: this is vital for your protection throughout the world, e.g. © Henry Lydiate 1980
  2. always make a copy of your work before it leaves your hands, preferably as soon as it’s completed.
  3. Always use a written contract of sale or deed of gift to make your copyright position absolutely clear.
  4. If you really do want to sell your copyright (in most cases it’s inadvisable) make sure you calculate and charge a realistic fee – it could be the most important piece you ever create.
  5. Consider also the possibility of issuing a copyright licence (i.e. a temporary permission) to reproduce the work for the one specific use only, and charge an appropriate fee for this. Here is a simple example:

COPYRIGHT LICENCE

Date:……………..(of Licence)

Name:………………(Licensee) Address:……………..(of Licensee) ……………………. Telephone:…………..(of Licensee)

I have been authorised by………….(Licensor) to photograph the copyright work of……..(Artist) and I hereby undertake that I will reproduce the work only for my private use or for educational purposes in connection with my work at …………(College).

I understand that the copyright owner of the copyright work, namely……..(Title of work)……………(Description of work) is……..(Name of © owner) and that full copyright credit shall always be given in the following manner:… (e.g. © Miro 1980)

I have paid to………….(Licensor) a copyright licence fee of :£

Signed……………(Licensee)

Access is the key factor. Artists and galleries should seriously consider whether they can and should continue to allow anyone to photograph work without express written permission.

© Henry Lydiate 1980

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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.