Briefings
Art: Copyright Law, copy-right or copy-wrong?
Introduction
When the artist, Jeff Koons, copied a suburban couple holding a litter of cute puppies from a black-and-white photograph in 1988, the last thing he had on his mind was the law. The photographer, Art Rogers, thought differently. Koons' colourful, ironic sculpture became the subject of a famous US court case when Rogers sued for copyright infringement. The court agreed with Rogers, and Koons was ordered to pay heavy damages. More recently, the English painter, Glenn Brown, landed himself in a legal minefield for copying a spacecraft from a book of science fiction illustrations aimed at children. The illustrator, Anthony Roberts, saw Brown's painting during the Tate's Tuner Prize 2000 for contemporary British art, and regarded it as theft. Brown was ultimately forced to settle out of court with Roberts, paying him a substantial sum by way of damages and legal fees.
Copyright law in the UK, which is governed by the Copyright, Designs and Patents Act 1988 ("the Act"), applies to a wide range of artistic works and encompasses a bundle of rights, including the right to reproduce the artwork and the right to distribute copies. Unauthorised reproduction and distribution are offences of strict liability so it doesn't matter if the infringer is unaware. The courts are entitled to award financial damages against copiers and to prevent and destroy offending copies. Artists intending to copy should beware, but so too should purchasers and commissioners of contemporary art, who ought not to fall into the trap of reproducing the work or allowing others to do so. In addition, galleries and museums should also look out, as they can be held liable for "dealing" in illicit copies.
Copyright Ownership
Copyright ownership is distinct from physical ownership - it is an intellectual property right protecting mental creation which lasts, in the UK, for the life of the artist plus 70 years. Just because you buy a painting, for example, does not mean that you acquire the copyright in the painting. Different copyrights can also inhere in a single work. For example, in a film, there will be copyright in the film images, in the script, in the spoken words and in the music.
Copyright generally belongs to the artist who made the artwork (who automatically owns it first). In the UK it does not need to be registered, though deploying the copyright symbol can be a useful device to ward off others. As a property right it can be licensed and sold to others, making it potentially valuable. When an artist dies, copyright passes by law to his or her descendants or to their estate. Artists' estates attempt to police reproduction of the artists' works, but many unauthorised uses still go unnoticed throughout the world. The estate loses revenue and in some cases this can devalue the dead artist's worth.
If I want to copy an artwork, what should I do?
Infringement of artistic works applies to both copying across media, for example, painting to photography, and across dimensions. Most acts of copying are therefore likely to involve the law and can include, for example, a museum copying, in digital form, images of artworks in its collection. The following is a check-list of steps to help avoid liability under UK law.
1 Does UK law apply?
UK copyright law only protects authors "connected" with the UK (that is, either domiciled or resident here) or works first created in the UK. However, because the UK is a signatory to many international copyright conventions, including the Berne Convention, most foreign artists and authors are likely to be protected under UK copyright law.
2 How old is the artwork?
Under EC and UK law the artwork is protected during the lifetime of the author/artist and for 70 years post-mortem. If, for example, the artwork is a painting by Turner, copying it will be no problem as it is out of copyright. Conversely, copying a painting by Ben Nicholson, who died in 1982, would be a problem. Care should also be taken if the artwork is reproduced by photograph as the photograph may be separately protected. Museums and picture libraries have got smart: a common trick is to take photographs of artworks which are out of copyright and to claim, successfully, another copyright in the photograph itself. A licence fee is then required to reproduce such a photograph.
3 Is the artwork protected?
The law protects most types of artworks including drawings, paintings, sculptures and photographs. However, this does not necessarily apply to all contemporary artworks - for example, installation art - which does not fit into these categories. Artworks must also be original to be protected. Originality means the result of an artist's own mental skill, judgement and effort - not necessarily genius or creativity. The law is not snobbish about originality: a chocolate bar wrapper is entitled to protection as much as a drawing by Picasso.
4 How much can I copy?
One can copy from another artwork provided it is not a "substantial part". The problem is knowing what this is. Many lawyers are often unsure. A "substantial part" is judged in terms of quality not the amount taken from the original. So copying a small detail within a painting might be an infringement if that detail is important within the painting. Copying the stripes from the corner of a Bridget Riley painting could be an infringement - as the grande dame of Op Art has successfully argued on numerous occasions. Copyright does not stop anybody from stealing somebody else's idea. In legal parlance, this is known as the "idea-expression" dichotomy. Copyright protect artistic expressions like paint strokes on a canvas, but not the idea to paint a portrait of Princess Diana or to paint in a neo-pointillist style. Last year, Andy Goldsworthy accused Habitat of ripping off his snow sculptures in an advertising campaign. His giant snowballs contained concealed objects which are revealed when the snow melts. Habitat had photographed furniture inside snowballs. Goldsworthy was understandably furious, but it is unlikely that the law would protect his idea.
5 Are there any legal defences?
Under UK law there are various "fair dealing" exemptions, though they are limited. One can copy for the purpose of private research and study. One can also copy for the purpose of criticism and fair comment. This defence is restricted, as the publishers Phaidon discovered when they were successfully sued by the Matisse estate for reproducing images in a coffee-table book on the artist. The supposed rule of thumb that it is alright to re-print images as long as they are no larger than a third of a page is a myth. An example of an exemption that does benefit the art trade is that which allows auction houses to reproduce artworks that are to be auctioned in sales catalogues.
In the US there are wider fair dealing exemptions. Amongst these is the parody defence, ie. that the copy is a critical commentary or satire on the original. Though Jeff Koons did not get away with using this defence, another contemporary artist, Barbara Kruger, recently did following her appropriation of a photograph.
6 Can I obtain the permission of the copyright owner?
It is always advisable to try and do this, particularly if the owner is likely to find out - although alerting the owner can be difficult if they later refuse. Often the owner will require a licence fee. Artists' copyright fees may be negotiated through copyright collection societies like DACS (Design and Artists Copyright Society) in the UK, who charge standard rates for the different artists that they represent. Problems arise when the fees are unreasonable. Many publishers of art history books have complained bitterly about the fees charged by DACS and artists' estates. The copyright fees paid to the Picasso estate by John Richardson in order to illustrate his biography of Picasso are rumoured to be vast. If you cannot track down the copyright owner, it is worth stating in writing, when the copy is displayed or exhibited, that you made all reasonable efforts to get their permission.
7 Is there a limitation period for being sued by the copyright owner?
Copyright infringement is both a civil and criminal offence. However, criminal proceedings are only brought in extremely rare circumstances. The right to sue for infringement can be lost: the right lasts 6 years from the discovery of the infringement.
8 If I am sued, what steps should I take?
If you are threatened with proceedings for infringement, consider whether you have really "copied" the artwork - you will probably need expert legal advice for this because of the technicalities of the Act and various degrees of copying.
Offering what would be a "reasonable" licence fee in the circumstances can resolve the problem, as courts tend to offer this in damages. Whether one is sued really depends on who the copyright owner is and how angry they feel. Big corporations like Walt Disney tend to be tough and have the money to sue.
Additional Artists' rights
Moral Rights
Moral rights have only recently been incorporated into UK law, and unlike copyright they need to be asserted by the author beforehand to be relied upon later. Moral rights cannot be licensed or sold or waived. They include the right of paternity - to be credited as the artist of the work; the right of non-false attribution - not to be falsely credited as the artist of a work; and the right of integrity - to object to the derogatory treatment of the work.
The integrity right is very important as it can mean that an artist can prevent or be compensated for damage caused to their work. For there to be a derogatory treatment, there must be an alteration to the artwork and it must be prejudicial to the honour of the artist. A derogatory treatment can apply to acts done on copies of the original artwork as well as to the original artwork itself. It is unclear, however, how far this right extends under UK law and whether it prevents actual destruction of the artwork. In a landmark case in 1995, the cartoonist, Bill Tidy, failed in his attempt to stop the trustees of the Natural History Museum in London from displaying reproductions of his drawings in which the drawings were significantly reduced in scale. By contrast, David Hockney was able to successfully invoke the right in the US to prevent a mural that he had painted on a wall, belonging to a hotel, from being demolished.
The Resale Right
An additional artists' "resale right" (droit de suite) which already exists in continental Europe is to be brought into force by all EC Member States before 1 January 2006. It is intended to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art. The right extends to those entitled to the artist's estate after their death and extends to all acts of resale, save where effected directly between persons acting in their private capacity without participation from an art market professional. Article 4 of the Directive sets out a rating system for the royalties to be paid to the artist (or his heirs) which is based on a percentage of the sale price. The royalty is payable by the seller to the artist or the artist's estate. The UK has not yet adopted this Directive.
Conclusion
John Ruskin wrote that "no painter who is ever worth a straw will copy". We know this to be untrue. Artists have always copied their fellow artists - think of Ingres paying homage to Raphael, or Picasso re-working Manet. Yet, just as artists need to copy and break rules, they have also been disposed to complain of plagiarism. Durer tried to copyright his lithographs back in the sixteenth century; recently, David Hockney has prevented copying of his fax drawings. Cries of "foul" copying will probably go on forever alongside claims of "fair" copying. One thing, however, which is clear is that, at present, owners of copyright in artworks are becoming increasingly litigious and are likely to invoke their copyright when they feel it has been trespassed.