Written by Alyce Evans and Principal, Jennifer Tutty
Copyright. It’s a word that 9/10 artists will be familiar with.
However, the number of artists who can confidently say they understand what it means, what rights it protects as well as how to prevent and avoid copyright infringement, is far less.
Fortunately, we work with artists and copyright every day, and are passionate about helping creatives to understand their legal rights.
Copyright for Visual Artists
On the 25th June, our Principal, Jennifer, was honoured to present at the ‘Leaving Your Legacy Forum’. Organised by the ‘Women’s Art Register‘ and ‘And Also Presents‘, the one-day event was held at Siteworks in Melbourne, and was designed specifically for artists.
At the event, Jennifer got to speak to a variety of visual artists about copyright and estate planning. Her session on copyright was so well received by the artists, that we have decided to share the presentation notes!
In this week’s blog, we share the 11 things every visual artist needs to know about copyright.
1. What is copyright?
Copyright is a form of intellectual property, which is protected under the Copyright Act 1968 (Cth) (Copyright Act).
It is a bundle of ‘rights’ that attaches to original works of authorship, such as a book, song lyrics, painting, sculpture, computer software and much more. These rights belong to the ‘copyright owner’ and can be bought, sold, assigned, licensed, or given to others.
Copyright is generally owned (in the first instance) by the creator of the work, however, there are some exceptions. It is important to also note that the original creator will not always be the copyright owner, as they may transfer their copyright to a new owner.
2. What does copyright protect?
Copyright protects original ‘works’ and ‘other subject matter’ created by a human ‘author’.
Protected ‘works’ include literary, dramatic, musical and artistic works.
‘Other subject matter’, which are protected, are sound recordings, films, television, sound broadcasts and published editions.
Notably, copyright does not protect ‘ideas’. These ideas must be expressed in a material form to be protected. For example, if you talk about your idea for an artwork, this will not be protected. If you put brush to canvas, create a digital image, or sculpt something from stone, then your idea has been put into ‘material form’ and may be protected.
3. What is an ‘artistic work’ under copyright law?
The Copyright Act defines the types of ‘artistic’ works that it will protect.
Under the Copyright Act, ‘artistic work’ means: a painting, sculpture, drawing, engraving, photograph, building or a model of a building, whether these are of artistic quality or not.
It also includes ‘a work of artistic craftsmanship’.
4. Is copyright different from ownership of a physical artwork?
Yes! Copyright exists separately from the physical work that it relates to. They are both separate assets that can be bought, sold, licensed, or given as a gift.
A person can own a physical artwork, without owning the copyright in that artwork. This means
1. A person may own the actual artwork, while someone else owns the copyright in it; or
2. A person may own the actual artwork AND the copyright in it.
In terms of estate planning, you can also distribute physical artworks and copyright rights to different people in your will.
5. Do you have to register copyright?
In Australia, copyright protection is an automatic right that is created as soon as the work is put into material form. You do not need to register it, nor do you have to display the © symbol, in order for your work to be protected.
6. What rights does a copyright owner of artistic works have?
The copyright owner of an artistic work has the exclusive right to:
1. Reproduce the work in a material form (this relates to making copies of your artwork).
2. Publish the work for the first time (this relates to supplying reproductions of your artwork to the public for the first time); and
3. Communicate the work to the public (which relates to making your artworks available online).
For example, if you are the copyright owner in a painting, you have the exclusive right to:
1. Reproduce the painting in a material form (e.g. make prints of the painting or create photographs of the artworks)
2. Publish the work for the first time (e.g. sell reproductions of prints of the painting to the public for the first time)
3. Communicate the work to the public (e.g. post a photo of the painting on an online digital gallery or social media platform, where it can be viewed by the public).
Importantly, the copyright owner also has the right to assign or licence any of these rights to others, and to take legal action against anyone who infringes their rights.
7. How long does copyright last?
Generally, under Australian copyright law, copyright in an ‘artistic work’ will last for the life of the person who created the work plus 70 years after their death.
8. Can copyright be jointly owned?
Copyright can be jointly owned by people, whereby they will be considered ‘tenants in common’. This means that each person owns a separate and transferable interest in the copyright which could be transferred in a will.
9. How do you give someone permission to use your artistic works?
If you give someone permission to use your artistic works, you are granting them a licence to use the copyright.
A licence may be granted informally, such as telling someone verbally that they can use the artwork for a certain purpose.
However, you can also enter more formal arrangements, such as a written licence agreement (or deed). This is a contract which clearly sets out the terms of the licence. It’s important to note that, if you give someone a licence to use your artistic work, you still own the copyright in the artwork.
You may also grant licenses to collection societies such as the Copyright Agency to administer the reproductions of your artworks and collect royalties for you.
10. How do you transfer ownership of copyright to another person?
Transferring ownership of copyright to someone else means that you are giving that person all of the rights in the copyright. They then become the copyright owner.
You can do this by selling or gifting the rights to someone else. When you transfer the copyright ownership, this is called an “assignment”.
In Australia, copyright assignments must be made in writing and signed by (or on behalf of) the copyright owner in order to be binding.
Copyright ownership can also be transferred by way of a will or other testamentary documents.
11. What are moral rights?
If a work is protected by copyright, then the creator of the work also has ‘moral rights’ in that work. Moral rights include:
– The right to be attributed as the author of the work;
– The right not to have the work falsely attributed to someone else; and
– The right to take action if the work is treated in a derogatory way.
Unlike copyright, moral rights cannot be licensed or transferred to another person. The moral rights remain with the original creator of the work, even if that person licences or transfers the copyright.
Written by Alyce Evans and Principal, Jennifer Tutty
Published 30 June 2022
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.