Works of Joint Authorship – Copyright Guidance

Scope of this Advice Note

Problems can and do arise when an artist is commissionedto originate an artwork in collaboration with others, such as an architect or with other artists. A sever with public art commissions, there should always be a written commission agreement between the artist(s) and the commissioner, and it should clarify the nature and extent of the artist’s contribution to the creation of a collaborative work. In the context of collaborative working, particular problems can and do arise in relation to ownership of copyright and of the artist’s legal moral rights.This advice note addresses those two particular matters.

Copyright

Copyright law in the UK is set out in the provisions of the Copyright, Designs and Patents Act 1988, and in the decisions of courts applying the law to particular cases. This note focuses on works of joint authorship and, for these purposes, it is assumed that such works were made after 1 August 1989 (when the1988 Act came intoeffect), and that the joint authors of the work are legally ‘qualified’ tohave copyright ownership because they are British citizens/subjects/overseasnationals or are resident/domiciled in the UK. It is also assumed that such works of joint authorship are ‘original’, in the legalsense – this means that such works are not ‘substantially derived’ from someone else’s work, and have been produced through ‘independent skill and labour’.

Are works of joint authorship protected by copyright?

‘Original’ artworks are automatically protected by copyright as soon as they are made in one of the following ‘traditional’ materialforms: sculpture, painting, collage, graphics, photography, architecture(but not landscaping), or computer-generated work. Also protected are works of ‘artistic craftsmanship’ – meaning works in other mediums, so long as they are more aesthetic than they are functional (e.g. mixed media assemblages or installations, ceramics ,textiles, domestic and street furniture, lighting designs, or other essentially three-dimensional works). Works of joint authorship wouldtherefore acquire copyright automatically if made in one of these mediums, or any combination of them.

Because there are two distinct categories of works protectedby copyright (‘traditional’ works; and works of ‘artisticcraftsmanship’), artists creating original designs in a two-dimensional medium, intending them to be applied three-dimensionally, should note that copyright is automatically acquired for their two-dimensional originals. For example, where two-dimensional graphic designs are created to be reproduced onto, say, hard landscaping features such as pavements or other walkways; similarly, where signage is designed two-dimensionally to be reproducedin/on buildings, or as street furniture.

Who is the first owner of thecopyright in works of joint authorship?

The legal ‘author’ of the work is automatically the first copyright owner (unless that person is an employee and the work is made during the course of their employment: see below). In the case of works made through a collaboration of two or more ‘authors’, where the contribution of each author is not distinct from that of the other authors, then the work is one of ‘joint authorship’; and all of the authors jointly own the copyright. This means that, where the finished work does not exhibit distinct works from separate authors, but is seen or experienced as a whole piece, then a work of ‘joint authorship’ would have been made. For example, the works of Gilbert and George, Boyd and Evans, Lennonand McCartney, or Gilbert and Sullivan.

However, where the finished piece does included istinct and separate works made by different authors, then a ‘collective work’ would have been made – and each contributing author would own the copyright in their own work included in the ‘collection’. For example, Judy Chicago’s The Dinner Party, which was a collection of separate works made by different women artists.

In the case of works made by employees during the course of their employment, different rules apply. If all the joint authors were employeesof the same employer, then the employer would automatically own the copyright – unless the contracts of employment stated otherwise. But if one of the joint authors was not an employee of that same employer (either because they were an employee of a different employer, or were not an employee at all), then copyright in that joint work would be jointly owned by all the joint authors. For example, if a free-lance artist is part of a design team, whose other members include employees, then copyright in that joint work would be jointly owned by all the joint authors (unless the commission agreement with the design team stated otherwise – see below).

Those are the basic rules about first copyright ownership of works of joint authorship. In addition,the law allows the joint authors to have a contractual agreement between themselves stating who willown the copyright. Such an agreement should bein writing, signed by the would-be joint authors before the jointwork is made. Similarly, the law allows employees who are joint authors to have an agreement with their (same) employer stating who will own the copyright.

If, as sometimes happens, a work of joint authorshipis made but there is no written agreement betweenthe authors/makers clarifying who are the joint authors and/or who are the joint copyright owners, then the law presumes that any person named as authoron ornear the work is a joint author.

Good practice suggests that all would-be joint authors would be well advised to enter into a written agreement with each other, and with any commissioner, clarifying (amongst other things) who are the joint authors and who will own the copyright – before starting any potentially joint work.

How long does copyright last in works of jointauthorship?

For the lifetime of the last surviving joint author, plus 70 years after the year in which they died. In the case of wholly computer-generated joint work, copy right lasts for 50 years from the end of the year in which the work was formatted.

Can joint copyright ownership be transferredto someoneelse?

Any transfer of copyright ownership – whether by sale or gift – must be executed in writing and be signed by all the joint copyright owners, if it is to be legally valid.

What about copyright licences to reproduce jointcopyrightworks?

Copyright licences are legal permissions by the copyright owner(s) allowing someone else to reproduce or disseminate copies of original copyright works. In the case of joint copyright owners, all ofthem must agree to sell/give such a licence. Furthermore, if sucha copyright licence is to be exclusive to the licensee, it must be executed in writing and be signed by all the joint copyright owners.

What if joint copyright work is reproduced withoutlicence/permission?

Any one of the joint copyright owners can takelegal action against an actual or potential copyright infringer to prevent the unlawful activity and/or to recover compensation/damages.

Are there any circumstances where a copyrightlicenceis not needed to reproduce copyrightworks?

Yes. There are several important legal exceptions that allow copyright works, including works of joint authorship and/or joint copyright ownership, to be reproduced without a copyright licence. In thecase of art in public places, they include:

• making a two-dimensional reproduction of a three-dimensional copyright work that is permanently situated in a public place or in premises open to the public
• making a copy of a copyright work for the sole purpose of advertising its sale (say,in an auction/salecatalogue)
• ‘fair’ reproduction for the limited purposesof research/private study, orcriticism/review (so long as sufficient acknowledgement of the author/s is alsopublished), or for reporting current events in newspapers or television.

Statutory Moral Rights

Since 1 August 1989 in the UK, all authors of copyright works have been given additional legal rights to protect their professional reputations and their works against certain abuses – even if the author(s) does not also own the copyright. These are called ‘moral rights’, and there are two key ones: the paternity right, which is the legal right to be identified as the author(s) whenever the work is exposed to the public; and the right to object to/prevent derogatory treatment to the finished work, whenever it isexposed to the public. These two important legal rights apply to all copyright works (except ones that are wholly computer-generated, or made by an employee where the employer owns the copyright),and last for the same length as the copyright.

In the case of the paternity right, all the author sofa joint work must assert this before it is publicly exposed – ideally in any original commission agreement (see below). And any one joint author could take legal action for breach of their individual right.

In the case of derogatory treatment, although it does not need to be asserted, it can be ‘waived’ (meaningnot asserted) by all of the joint authors. In other words all of the joint authors can, if they wish, agree not to take legalaction if their work is subjected to derogatory treatment after it has been completed and exposed to the public. Derogatory treatment means any addition, alteration, amendment or deletion unauthorised by the joint makers. Because legal moral rights are personal to the author(s), they cannot be transferred to anyone else – even if that person becomes the copyright owner.

Written Agreements and Documentation

Good practice suggests that every potential joint author of an original copyright work should make sure they havea written agreement before making the work, either with the other joint authors and/or with any commissioner. Such an agreementshould include, amongst other things:

• who will be the joint authors
• who will be the copyright owner(s)
• whether and, if so, how joint authorship will be creditedon or near the work
• arrangements for dealing with damage to the work (i.e.derogatory treatment).

Although it is not a legal requirement for copyright protection in the UK, it is good practice for the author of an original work to sign/initial and date the finished piece(and any designs or roughs as the workdevelops) – together with the international copyright symbol ©, if the authoris to be the first copyright owner. In the case of works of joint authorship, all the authors should do so.

Do Commissioners Really Need to Own Artists’ Copyright?

From the 15th century the law has given authors of creative works the exclusive right to prevent anyone elsefrom making a profit out of the material expression oftheir aesthetic skill and labour. The justification for copyright is ‘fairplay’. Nobody should be allowed to steal the product of another’s original skill and labour. Copying artworks without the prior express permission of the authoris theft of their intellectual property rights, just as it is theft of personal property to take a physical object belonging to someone else without their prior express permission.

When commissioners of artwork agree to pay forits origination, they are usually paying for two things: first, the expenditure of the author’s aesthetic skill and labour to create the work; second, the transfer of ownership of the work from the author to the commissioner (or their nominee). Often, commissioners will pay one fee for the origination of the new work, and a separate fee for the transfer of ownership. If commissioners wish to buy the author(s)’ copyright, then a separate fee should be negotiated with and paid to the author(s).

In the case of art in public places, it is hard to see why commissioners should want to own (and pay a separate feefor) the author(s)’ copyright. Because, as explained earlier, if the work is three-dimensional and permanently situated in a public place or in premises open to the public, anyone – including the commissioner – is allowed to make two-dimensional copies of the work, without prior express permission of the copyright owner(s). Such copies could take the form of postcards, posters, prints, catalogue illustrations, films, and so on. The only thing such a commissioner (or anyone else) needs the copyright owner’s express prior permission to do, is for the making more three-dimensional copies of the original copyright work. And so, if the commissioner wants to ensure that the author(s) does not make further three-dimensional versions of the original copyright work, then the original commission agreement should contain a provision whereby the author(s) agree not to do so. Accordingly, the commissioner has no need to buy the author(s)’ copyright in a three-dimensional work.

Where two-dimensional artworks are commissioned for public places (such as a mural), the commissioner (and anyone else) is not permitted to reproduce such work without the prior express permission of the author(s)/copyright owner(s). In such a case, the original commission agreement with the author(s) should say so, and include provisions for the payment of copyright licence fees or royalties to the author(s)/copyrightowner(s). If this were done, the commissioner would have no need to buy the copyright, which is usually more expensive than buyinga copyright licence.

As discussed earlier, artists’ legal moral rights are personal to them and cannot therefore be transferred to anyone else, including any commissioner. However, the law allows the copyright owner to alter the work after its completion – even if the copyright owner is not the original author(s). Artists are therefore extremely reluctant to transfer their copyright, because doing so would give the new copyright owner (e.g. the commissioner) the legal right to ignore the author(s)’ moral right in relation to derogatory treatment.

Protection of Ideas

UK Copyright law does not protect ideas – but the law of confidentiality can do so. UK’s confidentiality law can be used to good effect by artists who are asked topresent/discuss their ideas to potential commissioners/developers/sponsors.

In such situations artists should take steps to ensure that anyone receiving the benefit of their ideas clearly understands that they are being given in the strictest confidence. This should ideally involve the potential recipients signinga non-disclosure agreement with the artist. Such an agreementis normal practicein commercial dealings, to ensure the protection of tradesecrets, know-how, technical expertise, and so on, before contractual relations are entered into.

Artists are often not in a position to insist upon the signing of a non-disclosure agreement, and so they should write to the potential recipient well before any meeting/presentation/discussion takes place, and place on record that all their ideas are going to be given in the strictest confidence. A copy of sucha letter should be kept. At any such meeting, artists should reiterate the confidential nature of the exchanges, make contemporaneous notes of key ideas/know-how/expertise conveyed, and write again confirming these things after the exchange - again keeping a copy. In addition, if artists have been unable to capture their ideas in a graphic/visual form before any such meeting (and so acquire copyright in them), they should try to do so during the meeting as their ideas arise or are developed, orimmediately afterwards – and sign and date the roughs. By doing so, they will automatically own copyright in those graphic images (as explained at the outset of this note).

Henry Lydiate 2003. All rights reserved.

Further advice and readingat www.artquest.org.uk/artlaw/

For further information on PASW, e-mail: pasw@artscouncil.org.uk