Artists – copyright & designs

Copyright

Copyright is one of the most important IP rights that will protect artistic works. For artists, understanding copyright means it may be utilised to protect your original works and enforce your rights as well as be used for commercial gain (e.g., through licensing).

Copyright arises as soon as you put paintbrush to paper (i.e., the moment the work is created). You therefore do not need to worry about registering this right.

The copyright in a work will automatically be owned by the artist. However, this right may be licensed (i.e., allow someone else to use) or assigned (i.e., give/sell to someone else).

Any licence should clearly outline the terms of use, including how the work can be used, for how long, and for what compensation (Briffa can assist with this).

Copyright is infringed when someone else copies a “substantial part” of your original copyright work. A substantial part can mean a small but crucial part of the work; it does not have to be a large part.

Artists should also be mindful of creating derivative works based on existing copyrighted material, as this could infringe upon the original creator’s rights.

Designs

There are various types of design right.

Registered design right (RDR), as the name suggests, must be registered. This is done by filing an application at the UK Intellectual Property Office. Briffa can help with preparing this application including advising on the images which must be submitted to obtain the broadest protection.

RDR offers protection in the UK for up to 25 years (subject to renewal) of the appearance of an original design, i.e., the lines, colours, shape, texture, or surface decoration (e.g., a pattern design). This protection means that the owner of the RDR has the exclusive right to use the design, and this right will be infringed if someone else reproduces the design without authorisation.

Unregistered design right (UDR) does not have to be registered. Like copyright, it arises automatically. UDR only provides protection for shapes i.e., 3D designs; it does not provide protection for surface decoration (i.e., 2D works).

UDR offers protection in the UK from 15 years from first recording, or 10 years from the design being made available for sale, and will be infringed if someone copies the design without authorisation.

Something to watch out for is ownership – the default position is that the artist will be the owner of the UDR. However, this changes if the work was created in the course of employment, or if there is a contract which varies the default position for ownership. It is therefore important to ensure any contracts are clear and unambiguous.

As with copyright, design rights may be licensed or assigned to third parties.

Enforcement

In the event someone infringes your copyright or design right, you have the right to take legal action. There are various options for enforcement, including sending cease-and-desist letters and filing takedown notices for online infringement (Briffa can help with all these options, as well as advising you on how strong your case might be).

RDR is easier to enforce, as you can simply point to your registration. It is therefore a lower threshold that needs to be met than with unregistered rights (i.e., UDR and copyright).

When enforcing your unregistered rights, you will need to have proof of ownership. For this, it is important to keep all records of creation, for example keep any sketches or design drawings; it is even better to have them dated.