It is important for creatives to know how copyright works
Here's everything you need to know.
Words by Dr. Martin Douglas Hendry
Do you work in the creative industry?
Are you well versed in how copyright impacts you and the business you work in?
If you're starting from square one, or need a bit of a refresher - this guide is for you.
In this guide we'll cover:
- The principles of copyright
- What the rules are around who owns creative outputs
- What the duty of care is for creative professionals around others' work
- What copyright infringement is
- What to do when someone infringes your copyright
- How monetary compensation and enforcement of copyright works
At Virtuoso Legal, we help businesses with copyright every day (and have been doing so for over 15 years!)
Anyone working in the creative industries can benefit from understanding copyright better, as it helps them protect and monetize the things they create better.
If that isn't worth 5 minutes of your time, I do not know what is!
If you need help with copyright right away, click the button below to contact our team to discuss how we can help you.
What are the principles of copyright, and why talk about it?
Copyright is an intellectual property right that protects creative works in their recorded form.
It is an automatic right that comes into existence at the point where a new work is created.
For work to attract copyright it must be original and not derivative of any pre-existing works.
There are some exemptions for copyright which allow for a work to include others' copyright work. These are outlined in more detail in a following section.
In most instances, Copyright lasts for the author's lifespan plus 70 years - which makes it one of the longest-lasting IP rights (this can vary depending on the type of work under protection).
Once this period expires, the work enters the public domain, which ultimately makes it available for everyone to use freely and exploit commercially.
A prominent example of this in recent times was Winnie the Pooh, a character created by A.A. Milne. Now that the character is in the public domain, third parties are now able to use the characters freely without fear of legal repercussions.
Copyright confers upon copyright holders two types of principal rights.
- Economic rights - the right to exclusively benefit financially from the work
- Moral rights - the right to be attributed as the author of the work in a correct and reasonable way (e.g. not in a way that is defamatory etc.)
It is important for creatives who produce work to be aware of this, and make sure that they let others know that they consider the work they produce to be protected by copyright and that they will enforce it if infringed.
What are the rules around who owns creative outputs?
For those working in the creative industries, one of the most important things to be aware of is the legal basis for ownership of copyright works.
The key rules here are as follows.
- If you create something and it is not part of your job, or you are not employed to create it, you own the copyright in a personal capacity.
- If you create something as part of your job as an employee (for example, this article being written by me) usually the copyright is owned by the company you are employed by.
- If you are a freelancer or a 3rd party (e.g. creative agency) and you make something for another business (for example developing a new brand or website for a client), you own the copyright until it is assigned to the company you have made it for.
What this means for creatives, is that your relationship to the entity you are producing work for is crucial as it relates to the legal ownership of a creative asset.
This is important when it comes to:
- use of the assets, whether they're licensed or sold
- enforcement when copyright infringement occurs, as only the owner of a work can assert copyright
As such, creative professionals and businesses should always be aware of who the default copyright owner of a work is, and furthermore, take steps to assign it should it need transferring to the appropriate party.
What is the duty of care for creative professionals around others' work?
The next step is to understand where the limits lie in relation to how you make use of other people's work.
Generally speaking, you should be doing everything in your power to make new original work which is independent of what has come before. If you do this, you will avoid the risk of copyright infringement claims, as there has not been any influence on your work at all from pre-existing work.
Despite this, in many instances, the creative process is based on awareness and inspiration of others' work, and it is important to be aware of what you can and cannot use - and the limits of how much something can "inspire" your work.
Crucially, for a copyright claim to be made the Claimant must provide evidence of a likelihood of copying, and that furthermore its use is not subject to any exemptions which are outlined in copyright law (e.g. fair use and parody, for example).
There are several different strategies that creatives may undertake in order to minimise the likelihood that they are breaching other people's copyright when they are creating new works.
This can include but is not limited to:
- Fully independent creation - in essence making something entirely original without reference to anything else that already exists;
- Only using free-to-use or open-source works (e.g. creative commons), or works which have fallen out of copyright (e.g. use of classic artwork on a wallpaper design etc.);
- Use of pre-existing copyright works under the fair use exemption (e.g. use of small clips from videos in larger video which is ultimately more sophisticated, and upon which the new video isn't wholly reliant;
- Licensing of copyright works relevant to their use in the new work (e.g. sampling of music in a new song).
Notably, the more reliant a new work is on previously existing copyright work the higher the likelihood that the copyright owner may seek to enforce a breach of copyright claim.
It is also important to check where the limitations lie as it relates to the fair use exemption; creators can be biased toward their creations, which can increase the risk of a claim.
As such, it is important to have departmental and individual awareness of how copyright works can and cannot be used in the creation of new works to reduce the risk of a copyright infringement claim being made.
What rights does copyright confer to the copyright holder?
Per the GOV.uk website outlining the rights granted by copyright:
Economic rights give you the opportunity to make commercial gain from the exploitation of your works. This would usually be by licensing others to use the work, or by selling the rights.
The author of a copyright work has the exclusive right to authorise or prohibit the following acts:
This covers copying a work in any way. For example, photocopying, reproducing a printed page by handwriting, typing or scanning into a computer, or taping recorded music.
This covers issuing copies of a work to the public. This would include, for example, a book being sold in a bookshop.
This right only applies the first time a copy of a work enters into commercial circulation and so would not prevent the re-sale of that copy, for example by a second-hand shop.
Rental and lending
This covers renting or lending copies of a work to the public. For example, renting from a video store or loaning a CD from a library.
This covers performing, showing or playing a work in public. This would include performing a play in a theatre, and playing sound recordings or showing films in public.
This right does not extend to the exhibition of literary, dramatic, artistic or musical works (for example, in a museum or gallery).
Communication to the public
This covers communication of a work to the public by electronic transmission. This would include broadcasting a work or putting it on the internet.
This covers the making of an adaptation of a work. This would include making a film out of a novel, transcribing a musical work, translating a work into a different language or converting a computer program into a different computer language or code.
Works often mean more than just the economic value they can generate from their exploitation they can be very special to the person who creates them as they have invested a lot in the work, emotionally and/or intellectually. As a result, copyright works need to be protected in ways that are different to traditional forms of property. Moral rights protect those non-economic interests.
Moral rights are only available for literary, dramatic, musical and artistic works and film, as well as some performances.
Unlike economic rights, moral rights cannot be sold or otherwise transferred. However, the rights holder can choose to waive these rights.
There are four moral rights recognised in the UK:
The right to attribution
This is the right to be recognised as the author of a work. This right needs to be asserted before it applies. For example, in a contract with a publisher, an author may state that they assert their right to be identified as the author of their work.
The right to object to derogatory treatment of a work
Derogatory treatment is defined as any addition, deletion, alteration to or adaptation of a work that amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author.
The right to object to false attribution
This is the right not to be named as the author of a work you did not create. This would prevent, for example, a well-known author being named as the author of a story they did not write.
The right to privacy of certain photographs and films
This right enables someone who has commissioned a photograph or film for private and domestic purposes to prevent it from being made available or exhibited to the public. For example, this would allow you to prevent a photographer from putting your wedding photographs on their website without your permission.
What is copyright infringement?
Copyright infringement occurs when a copyright work is used without license or permission from the copyright owner.
This may involve copying in whole or copying of elements of the pre-existing work. For infringement to have occurred, there must be evidence of copying - similarity, if proven to be incidental, this does not constitute copyright infringement.
When copyright infringement occurs, it is typical for a work to not be copied in whole, but rather in part.
A valid claim for copyright can also be a result of unintentional copying, as there is no requirement for copying to have been deliberate to constitute infringement.
Ultimately should copyright infringement occur, the owner of the copyright will seek restorative undertakings to enforce their economic and moral rights over the work (as outlined in the previous section).
We will talk more about how licensing and monetary compensation alongside copyright enforcement works in a following section.
What should you do when someone else infringes your copyright?
Ok, so your creative team have produced a new output. But not long after it's been deployed you come across something very similar - too similar even - and you're not sure what to do next.
Well, here is your best course of action.
- Do not contact the alleged infringer - this may cause them to immediately remove all infringing material, which may "cover tracks" of larger infringement that might be occurring
- Collect evidence of infringement - collect chronological evidence of any and all infringement, if online, use the Internet Archive to try and identify when infringement began
- Compile evidence of your creation - gather evidence of how and when you created the original work that you think has been copied, and in particular, the elements which you believe have been copied
- Contact a legal team well-versed in copyright to assess your claim and prepare relevant correspondence to enforce your claim. Crucially, the legal team will be able to assess the accuracy and severity of infringement occurring as well as the reasonable damages that can be sought under copyright law.
For large organisations, these steps can be systematised to ensure that the organisation has a robust and comprehensive approach to copyright protection and enforcement. For businesses whose creative outputs are their principal source of revenue, such a strategy is key to success.
How does monetary compensation and enforcement of copyright work?
Those who create original copyright works benefit from the exclusive right to exploit their works economically.
As such (and as outlined above), the economic rights associated with reproduction and various deployments in commerce are retained by the copyright holder unless they are legally assigned to another entity.
In cases of copyright infringement, monetary compensation broadly takes the form of one of two types of damages: either "a reasonable royalty" or "an account of profits".
Should the claimant in a copyright infringement claim elect to seek a reasonable royalty - this in essence would be the royalty expected should the work have been licensed correctly in the first instance.
For example, if you were a photographer and a newspaper had utilized an image that you would have freely made available on a stock library for £750 - then as a Claimant it is reasonable to expect that this would be appropriate compensation.
Account of profits
An account of profits is a restitutory remedy, with the money awarded being derived from the sale of goods or services associated with the instance of infringement.
For example, if an artist's image had been used by a high street retailer on a range of popular t-shirts which had amassed a significant amount of sales, and where the image is itself central to the shirt's appeal. In this case, the Claimant may be better placed to seek an account of profits.
Ultimately the remuneration that a Claimant seeks to receive is best discussed with a copyright law specialist to ascertain the extent to which infringement has occurred as well as an accurate sense of the economic damage that has occurred.
To get in touch with our team of copyright specialists, click the button below.
As a member of the creative industry, a keen awareness of copyright is crucial - and can provide a significant advantage over others who are not well as well versed.
For creatives, getting to grips with copyright means:
- becoming aware of and asserting ownership over valuable works they create every day
- maximizing the benefit of economic and moral rights surrounding the work
- positioning yourself to best placed to be compensated appropriately in instances where copyright infringement has occurred.
We hope that you have found this guide useful.
If you would like to know more about IP and the creative industries, contact our team to book a consultation call.
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DISCLAIMER: The content within this post is for educational purposes only. Virtuoso Legal does not take any responsibility for those that use this information and waives any liability for any resulting effect on your personal or commercial circumstances. If you are experiencing an issue and need advice, we strongly encourage you to contact a solicitor to identify your best course of action.