Creators' rights

One of the National Portrait Gallery’s aims is to promote the understanding and appreciation of portraiture in all media. One of the ways we do this is to champion the creation of new works via our annual competitions, the BP Portrait Award and the Taylor Wessing Photographic Portrait Prize. This in turn raises issues for artists and photographers, one of which is the rights they automatically enjoy as creators of a particular portrait.

Creators can benefit from a range of rights that arise under the UK Copyright, Designs and Patents Act 1988 (as amended). The first bundle of rights is sometimes called the ‘economic rights’. The second is known as ‘moral rights’. There are also related rights, some of which are also relevant to creators, such as ‘artist’s resale right’, introduced to UK law in 2006.

Under UK law, copyright works fall into the following 8 categories: original literary, dramatic, musical and artistic works; films; sound recordings; broadcasts and typographical arrangements.

Copyright lasts for the creator’s lifetime, plus the end of 70 years after the year they die.

Please note that this is a summary of UK copyright law and should not be interpreted as ‘legal advice’. You should always consult a solicitor for individual advice. Please see the links below for additional information.

Economic rights

The creator of an original copyright work enjoys several rights of this kind. These rights are sometimes also referred to as the ‘restricted acts’. This is because a copyright holder is able to ‘restrict’ copying of his or her work. If a copyright holder wishes to allow use of their work, they may wish to charge a fee for granting a licence for use. It is important to remember economic rights are assets in every sense; they have an inherent value that may be traded, exchanged, waived or otherwise dealt with in an ‘economic’ way. The economic rights include:

1. The right of reproduction. This right is pretty straightforward, meaning simply that copying or duplication or reproduction of a work is prohibited without the consent of the copyright holder.  So, simply taking a photograph of a copyright work may infringe its copyright.

2. The right of distribution. This right applies to the dissemination of hard copies of works. In other words, if somebody makes 20 photographic copies of your work of art, and gives them out to their friends without your permission, they are likely to be infringing your copyright.

3. The rental or lending right. If somebody makes a copy of your work and lends it or rents it out for a fee without your permission, they are infringing your copyright.

4. The public performance right. This right allows copyright holders to restrict the public performance, showing or playing of their works without permission. This would apply, for example, to the unauthorised public performance of a poem or play. (Please note this right does not apply to the public display of an artistic work that has been legitimately acquired or lent.)

5. Communication to the public. This relatively new section of the Copyright Act covers broadcasts and making works available on the internet. If somebody posts your work on a website without your consent it is likely they are violating your rights. It is equally important to remember that, just because a work has legitimately been made available on the internet, it doesn’t necessarily follow that the work is free for you to copy for other purposes!

6. Adaptation. Copyright holders have the right to prevent others from making new versions of their work, or abridgements, or translations, or other variants.

Moral rights

In addition to the economic rights detailed above, the creator of a work enjoys a suite of moral rights. Moral rights originated in civil law jurisdictions like France and Germany, where the notion of an artist’s individual creative spirit is much more prevalent that in common law countries like the UK or USA, where economic concerns usually predominate. Moral rights help protect a creator’s honour and reputation, as well as the integrity of a work. They last for the same time as copyright, except the false attribution right, which expires 20 years after a creator’s death.

1. Paternity right. This right gives a creator the right to be named or acknowledged as the originator of a work they created. It must be asserted (which is why you nearly always see such an assertion on the copyright page inside books), and visual creators should ensure they put their name somewhere on a work itself, or on a frame or mount. Publishers or users of another’s material must accredit a work’s creator, as is good (and common) practice in any case.

2. False attribution. This right allows a person not to have a work falsely attributed to them. In a way, it may be seen as the counterpoint to the paternity right detailed above.

3. Integrity right. Creators are able to enact this right if they feel their work has been subject to ‘derogatory treatment’ and its integrity has thereby been called into question. ‘Derogatory treatment’ is any addition to, deletion from or alteration to or adaptation of a work that distorts or mutilates it and is prejudicial to the honour or reputation of its creator. There are very few instances in the UK where the integrity right has been brought into play. Contrast this with France, where creators enjoy much more highly developed system of moral rights and where complex cases have resulted in some very interesting and successful claims.

4. The right to privacy of certain commissioned photographs and films. This gives a commissioning party (as opposed to a creator) the right to prevent distribution or dissemination of, for example, wedding or civil partnership photographs. So, it might be the case that as a photographer you own the copyright over an image … but you are limited in what you can do with it as the commissioning party’s right of privacy may override your copyright.

Artist’s resale right

Artist’s resale right entitles the creator of an artistic work to a royalty resulting from the resale of a work, provided the sale is transacted via an ‘art market professional’ (such as an auction house or a commercial gallery) and is above a certain value.

This right lasts for the same period as copyright, but at present only applies to works by living artists. By 2012 artist’s resale right will also apply to dead artists. Royalties are administered by the Design and Artists Copyright Society and the Artists Collecting Society, set up by the Bridgeman Art Library. Creators are strongly advised to ensure their contact details are lodged with either body to ensure they receive royalties.