Worldwide, and Droit Moral

Copyright protection in the United Kingdom was dealt with last month, by explaining the nature of copyright (it only applies to ‘artistic works’ and ‘works of artistic craftsmanship’); who owns the copyright (the author, at first); what constitutes infringement (unauthorised reproduction); and what remedies the law provides for infringement of such works (injection/damages).

Two matters are outstanding: what copyright is given to British artists’ work in foreign countries; and what other protection is given to artistic works in this country against injuries which are not copyright infringements but damage the work itself and/or the reputation of the artist.

Copyright protection abroad

What does the © mean and should I use it?

If there is any possibility that your work will be copied abroad, you should make sure that it bears the symbol ©, your name and the year of first publication, and placed in such a way as to give reasonable notice of claim of copyright. (Publication means reproducing the work in tangible form and distributing it to the public; in the case of paintings it may be that public exhibition amounts to publication and that the copyright notice on the back of the painting is not sufficient notice. This has caused some artists serious aesthetic problems, particularly in the USA, where the notice is necessary even for domestic protection.) Complying with these requirements entitles your work to copyright protection in countries which have signed the Universal Copyright Convention-most countries in the world, except Albania, Bolivia, China, East Germany, Jordan, Korea, Libya and the USSR. The United Kingdom is party to the Convention and so work of British artists will be given the same protection as is given to the work of the Convention country’s own artists, and lasts for your lifetime and for 25 years after death (so that your personal representatives may claim). Protected works include ‘artistic works and paintings, engravings and sculpture’ – a vague phrase which does not mention lithographs or photographs, but probably includes them.

What protection have I abroad if my work does not bear ©, my name and year of publication/exhibition?

You have better, clearer and longer protection – without any formalities – but not in so many countries. That is because the United Kingdom has also signed the Berne Copyright Convention, which ensures that other signatories will have passed copyright laws similar to ours, including the ‘droit moral’ discussed below. Those countries include most of Europe, Scandinavia, Australasia, Canada, India and Japan, but not China, the USA or USSR; (but there is a possibility that the USA will ratify the Convention in the near future – until then you should use the © method, if your work is likely to be exhibited in the USA). Protection is given to British artists, others who habitually reside here and to authors of artistic works incorporated in a building or other structure located in the Berne Convention country; it lasts for your lifetime and for 50 years after death. Protected works include drawing, painting, architecture, sculpture, engraving, lithography and photography; works of applied art, illustrations; maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science; and to entertainments in dumb show.

Do I have any right to receive a royalty from re-sale of my works abroad?

If the United Kingdom had complied with her promise, made at the Berne Convention, to pass a law giving you such a right in this country, the answer would be yes; but no such law has been passed, nor has there been any attempts to do so. This means you do not have the right which artists in some other European countries (e.g. France) have, namely the ‘droit de suite” – the right to receive during your lifetime a royalty from the proceeds of any second or subsequent sale of your work. It is because you have no such royalty right in this country that you cannot claim your ‘droit de suite’ royalty from re-sales in Berne Convention countries.

Other protection in the United Kingdom

Strangely, it is the Copyright Act which gives artists protection against distortion of their work in the United Kingdom – regardless of who owns it or the copyright to it. This protection, or ‘droit moral’, is given only to ‘artistic works’ and ‘works of artistic craftsmanship’, lasts for the artist’s lifetime and for 20 years after death, and covers the two kinds of injury mentioned next.

What cam I do if my work is exhibited under someone else’s name?

It is an offence for a person to insert in or affix on your work (or a reproduction of it) a false name/signature, so as to imply that someone other than you is the author. It is also an offence for a person to exhibit in public, sell, hire, or distribute such work (or a reproduction of it) when, to the offender’s knowledge, it bears the name of a false author. You may obtain an injunction from the High Court to prevent the offence occurring, or sue for damages (monetary compensation) if it has occurred.

What protection have I against people altering my work?

It is an offence for a person to publish, sell, offer for sale, hire or offer for hire your work (or a reproduction of it) falsely representing that it is your unaltered work, knowing that it has been altered since you parted with possession of it; you may obtain an injunction or damages (see above). Further protection is given by the defamation laws if your work is altered, used or presented so as to ‘de-fame’ you – if the effect is that ordinary people would think less of you professionally; you may obtain an injunction to prevent the defamation, or sue for damages for loss of reputation.

What can I do if work bearing a superficial resemblance to mine is used in such a way as to lead people to believe it is my work?

If work is sold or used commercially so as to suggest it is your work, when it is not – if it is ‘passed off’ as yours – you may use the ‘passing off’ law to sue for damages to compensate for the abuse of your reputation. (A particularly useful measure for the protection of titles, which are not protected by copyright law).

© Henry Lydiate 1977

 

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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.