What is copyright?
Everyone has heard of copyright, but making sense of it is less easy. However, the essentials of copyright law are not technical. This article seeks to set out the main features of copyright law of which artists need to be aware.
Copyright is the phrase that lawyers use to refer to the rights in creative works. Because of this, copyright does not protect ideas themselves. Copyright protects the expression of ideas, across a wide variety of media.
What kind of works can qualify for protection?
Copyright protection applies to a wide variety of works, and in many cases goes far beyond traditional artistic works such as novels or paintings. It can even apply to works of architecture or works of artistic craftsmanship. Clearly, any painting, drawing, woodcut would be covered, and stained glass windows and even wrought iron gates have been found to have copyright protection. If you work in the visual arts, almost all of your output would therefore be subject to copyright protection.
Does my work have to reach a certain standard?
There is a requirement that the work is original, which means that you must have created work using your own individual skill, judgment and effort. However, it is not difficult to reach this standard, as an original work does not necessarily have to be inventive. In one case, even a football pools coupon was found to be original for the purpose of copyright protection.
The court are not interested in artistic quality of any work. Originality is the only important factor.
Who has copyright?
Copyright will normally be owned by the artist. There can be exceptions where works are generated by an employee or where they are commissioned under a contract that expressly provides for the ownership of the copyright.
However, artists will often reach agreements to give others the right to use their copyright work. This could be by an assignment of the copyright, which transfers the artist’s rights, or by a licence, whereby the artist retains more rights.
Remember that when we talk about transferring copyright, this is nothing to do with selling an original work of art. For example, if you sell a painting, copyright in the painting still remains with you unless you agree otherwise. This means that you can still transfer the rights in the work for use by others even though you may no longer be in possession of the original. Conversely, a buyer of an original work cannot offer it for reproduction. Also bear in the mind that you can sell the licence to your copyright for different purposes. For example, you could allow one person to make prints of your work, and another to use it in a book.
What if more than one person creates a piece of art?
Copyright can be jointly owned. However, it is sometimes hard to work out the input from each party and what rights they have as a result. The recent case of Slater –v- Wimmer turned on this issue.
Here, Mr Wimmer had organised a tandem skydive over Mount Everest and commissioned the Claimant, Mr Slater to film the footage in return for paying his expenses. Mr Slater later discovered that a documentary of the skydive had been broadcast in Denmark which used around two minutes of Mr Slater’s footage. Mr Slater then sent an invoice of £3,000 to Mr Wimmer for the use of the footage. Mr Wimmer claimed that he owned the copyright to the footage. However, there was no written agreement on the issue.
The court decided that both Mr Wimmer and Mr Slater were joint authors with Mr Slater as principal director and Mr Wimmer as producer. Each needed the other's permission to reproduce the work. This case highlights the importance of reaching a clear written agreement as to the ownership of intellectual property rights, particularly where any work is produced in collaboration with another party.
What protection do I have?
Clearly, the main aim of copyright law is to prevent someone copying your original works without your agreement. Copying either the whole or a substantial part of the protected work will be covered. There are a number of other aspects to the protection given by copyright, for example, to stop dealing in works protected by copyright.
If someone does copy your work, there are different remedies you may have. The primary remedy is damages, which are usually calculated on the basis of the profit lost as a result of the copying. For example, you could charge the fee that you would have charged to allow the other person to use your work.
Alternatively, you could seek an injunction to stop someone using your work at all. In either case, it would be sensible to take legal advice before starting any court proceedings, because making a mistake with these could be costly, even if someone is found to have infringed your work.
Is there anything I need to do to protect myself?
Copyright arises automatically, you do not need to take any steps to register your work to benefit from copyright. However, if you do think someone is infringing your copyright, you need to prove your work is original, particularly if they try to allege that their work was first. It is therefore a good idea to keep a copy of all your draft and final works alongside a record of the dates when they were produced. Sometimes it is practical to post a copy of the work to yourself, and then leave it in a sealed envelope so that you can prove the date on which it was posted and therefore the latest date on which it could have been created. It is also a good idea to include the copyright symbol along the side of your name when displaying your work.
However, you also need to be careful when using your work for any purpose. For example, some competition entries can have clauses assigning the copyright in the works that you submit. If you have any doubts, you should take advice.
by NAT YOUNG, SA LAW