art dealers and copyright - friend or foe?
Dating back to the early eighteenth century when books first got
copyright protection followed next by engravings, copyright has
always been in the background. Until now. The Government is
reviewing copyright law and the hot topic at the moment is whether
it is fit for purpose in an age of digital downloads, Google and
online piracy. And wrapped up in this is how the law protects
images - whether as photographs or as underlying artistic works -
as drawings, paintings, sculptures, engravings and so on both
online and offline. And it is in the area of image rights where
dealers need to be aware of how copyright impacts on what they
do.
Copyright exists to protect the underlying “work” whether a
photograph, drawing, sculpture and so on from unauthorised copying,
which these days includes putting an image in an online sale
catalogue just as much as in a printed catalogue. Copyright exists
completely independently from ownership of the original work - so
when a painting is bought from the artist, for example, the
copyright stays with the artist whatever happens to the painting
subsequently. Indeed the owner of the copyright will usually be the
artist or their estate and the right lasts for 70 years from the
end of the calendar year in which the artist died. On 1 January
2012 artists who died in 1941 lost their copyright protection (eg
Robert Delaunay, El Lissitzky). So if the artist died in 1941 or
earlier, in general there is no reason to worry about copyright
(including artist’s resale right, which forms part of copyright).
You can take photographs of such art works, reproduce them or put
them on your website without worrying about whether you need the
permission of the artist’s estate (or their representative such as
the collecting society DACS or the Bridgeman Art Library). However
if the artist is still alive or died after 1941 you definitely do
need to worry about copyright.
Typically dealers will take a photograph of their works for
archival and advertising purposes: in such circumstances there will
be two copyrights - that in the photograph (which the dealer needs
to make sure belongs to them) and that in the underlying work (if
it is still in copyright of course). If the work is in copyright
then strictly speaking taking a photograph of it and then
reproducing that photograph (eg in a sale catalogue or online)
requires the consent of the copyright owner unless the dealer
benefits from certain exceptions in copyright law. Of most benefit
to dealers is section 63 of the Copyright, Designs and Patents Act
1988 which allows them to copy a work in copyright (eg to
photograph a painting) in order to advertise its sale. So it is OK
to use images of your works in sale catalogues without worrying
about getting consent as long as they are genuinely for sale and
the use is to advertise their sale. There is however a debate about
whether section 63 applies to online catalogues - the art market
take the view it does, DACS take a different view and this may be
clarified by the UK Government in due course.
But if you use art images other than to advertise their sale you
do need to take care you don’t fall foul of copyright. And once an
exhibition is ended your right to use images of works in copyright
to advertise their sale also ends.
Dealers also need to protect their own copyrights - the
copyright in their images of works they possess or have dealt in.
High quality images of the work may have commercial value. So if
you have photographs taken of your works make sure the copyright in
the photographs gets assigned to you. And use a copyright notice
too [copyright symbol] [art dealer] [date]. But when you
take and use these images do bear in mind any rights artists or
their estates may have in the work. You may need a licence from
them or eg DACS (if DACS represents them) for what you intend to
do. And this typically involves paying a licence fee. Better to be
careful about copyright than risk a law suit alleging copyright
infringement and seeking substantial damages.
Dealers have nothing to fear from copyright as long as they pay
attention to the few basic rules noted above. And they may even
find their own images have commercial value, if properly
protected.
Simon Stokes heads Blake Lapthorn’s art law practice in London
and is the author of the leading text Art & Copyright (2nd
edition, Hart Publishing, Oxford 2012). This article gives general
guidance (legal advice should be taken where required on specific
situations) and only considers the UK position - copyright laws
differ from country to country.
First published in the Society of London Art Dealers
Journal.
