A Guide to Artists’ Rights
Today it is easier than ever for artwork to be reproduced, copied and used without an artist’s permission.
As such, it is important that artists understand their rights and what they can do if somebody is infringing them.
Boodle Hatfield understands the complexities and issues specifically relating to artists and art law. Below is a broad summary of the key rights that artists should be aware of.
What is copyright?
Copyright protection arises when you create artistic work (including illustration and photography). It is a right that protects your artwork, stopping others from copying it unless they have your permission to do so.
How do you copyright art?
The protection of copyright arises automatically on the creation of the artwork, you do not have to apply for it or register it.
You can include a copyright notice (for example, using ‘©’ plus the date of creation and the owner’s name when posting a picture of your artwork online) to inform third parties that the artwork is protected, but there is no requirement to do so. The artwork is protected, even with no copyright notice.
Who owns the copyright?
The creator of the artwork (the “author”) is initially the owner of the copyright. However, if the artwork is created by an employee during the course of their employment, the employer will be the first owner of the copyright (unless agreed otherwise).
Where the artwork has been commissioned the person who created the artwork owns the copyright, rather than the person who commissioned the work (again, unless agreed otherwise).
If the artwork has been created by more than one person, and the contribution of each author is not distinct, then the creators will own the copyright jointly.
Artworks, where the owner of copyright for a particular artwork cannot be found, are referred to as “orphan works”. A diligent search should be conducted to find the copyright owner. If the identity of the copyright owner remains unknown it may then be possible to apply for an orphan work licence for non-exclusive uses in the UK for a term of initially up to seven years.
How long does copyright last?
Copyright in recent work created since 1989 lasts from creation of the artwork until 70 years from the end of the calendar year of the death of the author.
Upon the death of the author, the copyright will pass to his/her heirs, unless specifically transferred to somebody else (for example, by including provision for this in the will).
How do you sell copyright?
You can assign (transfer) your copyright to a buyer, but note that the transfer must be in writing.
It is also possible to give somebody a licence to use your copyright. This licence can be exclusive (meaning that only that person can use the copyright, to the exclusion of all others including the creator) or non-exclusive.
You can register your copyright work with a licensing body who will agree licences on your behalf and collect your royalties for you.
What is copyright infringement?
Copyright infringement occurs when somebody uses your work (in relation to the whole or substantial part of your work) by:
- Copying the work;
- Issuing copies of the work to the public;
- Renting or lending the work to the public;
- Performing, showing or playing the work in public;
- Communicating the work to the public; or
- Making an adaptation of the work or doing any of the acts above in relation to an adaptation.
Legal action may be taken against the infringer, with potential remedies including damages and injunctions. In some cases infringement can also lead to criminal prosecution.
Importantly, there are some exceptions to infringement where permission is not required before using copyright work. These include use for teaching, parody, caricature and pastiche, criticism, review, quotation and reporting current events and non-commercial research and private study.
What are artists’ moral rights?
Moral rights ensure that when people use your work, they do so respectfully. The rights apply to artwork protected by copyright and include the right to be identified as the author of a copyright work, the right to object to derogatory treatment of a copyright work and the right to object to false attribution of a copyright work.
There are circumstances where moral rights do not apply, for example only limited moral rights apply where the copyright is owned by an employer (by virtue of the work being created by an employee in the course of their employment, as explained above), and for certain types of copyright work there are no moral rights (such as software).
Artist resale rights
When does art qualify for resale rights?
To be eligible for resale rights, subject to some exceptions, artwork must be sold for €1,000 or more through an auction house or by an art market professional, The artist must be a national of a country in the European Economic Area (EEA) and the sale must take place in an EEA country.
What are artists’ resale rights?
Artists and their heirs are entitled to a royalty each time an artwork is resold for €1,000 or more. The royalty is calculated on the below sliding scale, calculated cumulatively, subject to an overall cap of €12,500:
|up to €50,000
|between €50,000.01 and €200,000
|between €200,000.01 and €350,000
|between €350,000.01 and €500,000
|in excess of €500,000
Royalties are capped and cannot exceed €12,500 for a single sale.
The right lasts for the same period as copyright, that is until 70 years after the end of the calendar year of the author’s death.
How to collect resale right royalties
Artists cannot collect resale right royalties directly from the art market professional who made the sale. Instead, collecting societies (such as the Design and Artist Copyright Society) manage and collect the royalties on behalf of artists.
There are other rights which may be vital to particular artists or artworks. Perhaps the three most important are design rights (which protect the 3D appearance of designs), secrets (or other confidential information that has not been made public), and trademarks (these are ‘badges of origin’ of traded goods or services that act as a guarantee of their source and quality).
How Boodle Hatfield can help
Boodle Hatfield’s team of dedicated art lawyers have a long history of advising individuals, institutional collectors, estates and trustees, galleries, art and antique dealers on art law issues. These include commercial dealing and licensing, and disputes over ownership, authenticity and provenance, misattributed or damaged artwork, restitution or holocaust claims, art fraud, loss of sale and associated losses, copyright and design rights, confidential information and breach of contract.