Copyright protects the following categories of original artistic work:
1. a graphic work, photograph, sculpture or collage;
2. a work of architecture being a building or model of a building; or
3. a work of artistic craftsmanship.
These categories are relatively self-explanatory and cover works falling within the ordinary meaning of the words apart from ‘graphic work’ and ‘a work of artistic craftsmanship’, which require some further explanation.
A ‘graphic work’ is almost any visual work on a surface, such as a painting, map, etching, engraving, lithograph, woodcut or similar. The work has to be fixed on a surface, for example it has been held there was no copyright in the design of Adam Ant’s face makeup. The work will be protected irrespective of artistic quality, as will all other types of work in the first category except sculptures, which do require artistic merit in order to be protected by copyright.
A ‘work of artistic craftsmanship’ on the other hand does have to have some artistic merit and applies only to those items which are made by hand or individually, not to mass produced, identical items.
For example, hand-painted tiles, stained glass windows and wrought iron gates as well as the type of designer furniture made by Lord Linley would fall into this category, but not mass-produced furniture.
An artistic work may also qualify for protection as an unregistered or registered design. This can be for the whole or part of a product.
Unlike copyright, a registered design gives the holder an exclusive right to make the design, meaning that they can take action against someone who infringes their design even if it is not copied.
An unregistered ‘design right’ arises automatically, but gives a lower level of protection than registering the design. For example, it only protects against a similar work if the maker of the later work has actually copied the design to produce it.
Ownership of copyright in artistic works and design rights
The general rule is that an artist will own the copyright and design rights in any work that he or she produces.
If you produce an artistic work in the course of your employment, any copyright or design rights in that work will automatically belong to your employer. If you are commissioned to produce an artistic work as a commission then, unless there is any agreement to the contrary, you (rather than the commissioner) will own copyright in your artistic work, although the commissioner will own any design rights. The person commissioning the work will however have a limited implied licence to use the work without infringing your copyright for the purposes for which it was commissioned.
If you create an artistic work jointly with another person, you will each own copyright in your particular parts of the work if such contributions are distinct from each other. If such contributions are not distinct from each other, you will jointly own copyright in the work and will need consent from the joint author to exploit it.
Finally, an artist has certain moral rights in their works. This includes, among other things, the right to be acknowledged as the artist when the work is displayed in public and the right to object to derogatory treatment of the work. Moral rights are personal to the artist, and cannot be assigned although they need to be asserted to take effect. You can also be asked to waive your moral rights.
Content supplied by College of Law students at the Moorgate Centre supervised by Tim Harris of Bird & Bird LLP.
Image: Hana Fujimoto, Big Hand Performance, 2017: www.hanafujimoto.com