Copyright is a simple term in that it means exactly what it says: the right to copy. The concept, however, can cause some confusion about what is and isn’t allowed, what clients have and haven’t paid for and what constitutes a breach. This fogginess can lead to some clients demanding copyright when they simply don’t need it, not understanding just what it is they are asking for and being offended by the hefty price tag that illustration copyright assignment comes with.
The holder of the copyright, pertaining to any work, is the only person who has the right to produce copies of said work. ‘Copying’ includes copying by hand, photographing or photocopying, creating scans or, most importantly to illustrators, reproducing art in print, digitally or through other media.
Copyright is property and can be sold as such. It is a separate entity to the artwork it relates to and one can be transferred without the other. It is possible to own artwork without owning the copyright, and vice versa. Like any other property, copyright can be sold, gifted, left in a will and inherited or otherwise disposed of. You cannot own copyright on something that is in itself a copy – the work must be original.
You do not need to register for copyright of your work. Once some work is created, the artist owns both the artwork and the copyright. While generally unnecessary, if being able to prove your copyright is something that concerns you, you can keep a record of your creation by taking time stamps photographs or mailing yourself a photocopy of the original work.
Illustration copyright is held for the entirety of the artist’s lifetime, plus seventy years. An artist in her 30s creating work who lives into her 90s will hold copyright of said work for 130 years. Once this time elapses the work moves into the public domain, where it can be used freely, where it is said to be ‘out of copyright’.
One cannot copyright an idea, concept, practice or style. The form that those ideas or practice takes will be under copyright, but the concept that got you there will not. One could copy an idea, and create work in their own style, but not copy work that you yourself have created. It’s worth noting that it’s unlikely to be worth pursuing someone for similarities to your work, if they have not seen it or were unaware of its existence.
There are indeed circumstances whereby work may be reproduced without the creator’s permission or paying a fee. These situations are knows as ‘fair use’ or ‘permitted acts’.
You may use replications of artwork when reporting on or in relation to the work. For example, if a painting has been stolen the image may appear on TV or online article as part of the reported news.
Much like reporting news, one can replicate work that is being advertised for sale (this could appear in the form of posters, catalogues or online listings). Once the sale has closed however, the copies themselves cannot be sold.
Commenting on work is an important part of creative practices. Featuring work alongside a critical commentary is permissible. This should be used considerately and is a fine line to walk. The review should be the focus of the material, rather than being used as a way to feature the work itself.
Work may be copied for private research where you will make no profit. Students for example may photocopy or photograph work for their studies, while authors cannot publish the work as part of a monetised research paper or novel.
‘Works of artistic craftsmanship’, sculptures and buildings displayed in a public place may be reproduced, but ‘graphic works’ (paintings, drawings and photographs) may not.
If you were to illustrate or photograph a room containing a painting, this is allowed as the presence of the artwork is ‘incidental’. However, if you purposefully placed the artwork within the shot or otherwise intended to include the work, this would not be incidental and so be an infringement of the artist’s copyright.
An artist may copy an earlier work of theirs, even if they no longer hold the copyright, as long as they do not imitate the ‘main design of the work’. This is fairly unclear and supports the best policy of not letting go of copyright in the first instance.
You may use replications of artwork when reporting on or in relation to the work. For example, if a painting has been stolen the image may appear on TV or online article as part of the reported news.
The line between fair use and copyright infringement can be fine, and you should proceed with caution if you intend to use another’s work. A test of whether you’ve copied another’s work is to consider whether you have copied a ‘substantial part’ of their work. This does not refer to how large a portion of the physical work you have used and you should consider the weight that is held by each element. It’s also important to think about the character of the work and whether you lie on the side of being inspired by a piece, or whether you have copied.
It would be fair to say that using reference material is a common stage of many artists’ work, but caution should be taken when finding these materials. Photographs are of course under copyright of their own so be sure to take care in how you use these materials to inform your work. Again, use the ‘substantial part’ test to assess whether you have used the work appropriately.
Collage is widely used both as part of the preparation for artwork and the final piece itself. Obviously, work that is out of copyright can be used freely without permission or paying a fee, however you will need to take care when using work in copyright. Photography is very easily accessible both online and in print, and it’s important to remember that that work is nonetheless copyrighted. Consider whether you’re using a ‘substantial part’ of others’ material, and endeavour to seek permission from copyright holders wherever you can. Collage is a legitimate medium in the world of art and you should not by any means fear this practice, but just remember to take care and respect other artists’ work.
As we discussed above, copyright is property, and as such, infringement of that copyright is legally treated as theft and can be prosecuted under criminal law. The penalty for copyright infringement would most usually be to pay damages, which would likely equate to the appropriate licence fee. There may also be additions to this where relevant such as; flagrancy (the infringer knowingly used the work), an injunction to prevent the infringement continuing, an assessment of profits (the infringer pays over any profits they gained from using the work) and perhaps a ‘delivery up’ order in which all the infringing work be destroyed.
Anyone involved in the infringement can be claimed against, even if they did not know. A real life example of this would be an illustrator’s client being sued in addition to the illustrator. The client could very likely lose a significant amount of money in this claim even though they were not the creator, and they may turn to the illustrator for compensation.
On the flip side, one of the most common copyright infringements against illustrators is when clients use artwork outside of the licence which they have purchased. The resolution to this situation would usually be for the client to pay damages and perhaps an additional flagrancy fee. Abuse of the artist’s work could lead further to an injunction and/or delivery up order.
The overwhelmingly most appropriate way to hand over rights to use your work is for your client to purchase a licence. This not only works in the favour of the artist, allowing them to retain illustration copyright, but also for the client who need on pay for the ways in which they actually need to use the artwork.
It is almost never appropriate for an artist to sell the copyright to any of their work, and in fact it works against the illustrator’s interests. By assigning copyright to another party the artists loses all rights to copy the artwork for any purpose themselves. This includes being able to use the work in their portfolio, on their social media and their website. As a licence fee grants specific uses of the artwork to a client, for them to open up all possibilities for use by acquiring the illustration copyright they should be paying a very large fee.
One situation where the transfer of copyright might be appropriate is with logo design where it’s understandably essential that the client has open use of their brand in whatever manner they see fit. Here though it’s much more advisable to simply open up your licence as wide as possible to allow these possibilities for the client, while still retaining the illustration copyright yourself.
In general, illustration copyright is a pretty straightforward concept. While there are certainly some legal grey areas, it simply requires care and respect to be taken when using other’s work. There’s no need to fear copyright infringement when creating work if you are aware of what it is that’s inspiring you and your practice.
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