Copyright is an economic right that gives you the opportunity to make commercial gain from the exploitation of your works. This is generally done by licensing the right to use the work to clients.
Copyright is an area which is governed by the Copyright, Designs and Patents Act, 1988. When you create a painting, drawing, collage, diagram, map, chart, plan, engraving, etching, lithograph, woodcut or similar work, you have created an artistic work and that is protected by copyright, provided that your illustration fall into any one of these categories. Copyright is a legal area which is governed by the Copyright, Designs and Patents Act, 1988.
As creator of that illustration you will usually own the copyright which subsists in it. There is an exception to this general rule. If you are an employee and your job requires you to create illustrations, then usually your employer will own the copyright in these works.
There are no registration requirements and no requirement to use the © sign, although used online it will help the public to realise that your illustration is protected by copyright. It is prudent to use the © sign and/or a copyright notice on your works, which can simply consist of the wording “© [Insert Name] – all rights reserved.”
Copyright is limited in duration and usually lasts for the life of the author plus 70 years after the calendar year in which the author dies, this is known as the “copyright term”. Note that “author” is the statutory term for the creator of the copyright work. When it comes to illustrations, you can read “author” as meaning “illustrator”. You cannot renew copyright like you can with other intellectual property rights such as a trade mark or a registered design, but the standard copyright term is long.
Copyright and licensing
If you own copyright, then unless you authorise others to do so, you are generally the only person who has the right to make copies of your illustrations. If someone else makes a copy without your permission, they may be infringing your copyright. There are certain exceptions for use of a copyright work such as if the use is deemed “fair”. Please see our note on Copyright Infringement for further information on the exceptions.
Copyright in your illustration is an economic right. It is different from ownership of the physical illustration itself (if you create physical artwork).
You can give permission to individuals or companies to reproduce your illustration, which is known in the illustration trade as granting a licence. To avoid disputes later, we recommend that your licence should be in writing and should set out the use that can be made of your illustration, the territory it is used in and the duration of the licence, and also any restriction you wish to place on the use. You can grant licences for different uses. See Writing a Licence.
Selling your copyright
Although this is generally not recommended, you can sell your copyright, which means that you have no further right of reproduction in your work. This is known as an assignment, but will only be effective if you put it in writing. Copyright is a very valuable commodity. It affords the owner the exclusive right to reproduce an image (or sell on to allow others to reproduce it) in any way throughout the world for the period of copyright. If a client wants you to assign copyright in your commissioned artwork they must be prepared to pay a sum that reflects all the possible uses they could put the artwork to.
With US clients you may asked to agree to a work-for-hire (or work made for hire) contract. While this may sound innocuous, it is in fact an American legal term which means that the commissioner will own the copyright in the work, rather than the creator. This should be resisted unless the fee is appropriate for this significant right.
If your illustration is reproduced without your permission, you are entitled to damages; perhaps an injunction to stop the infringement and on occasion the infringing copies delivered to you. See Going to Law.
Brexit: UK and EU copyright law
Copyright is a national right provided by each country under its own laws, however, there is some harmonisation internationally and at an EU level. Much of modern UK copyright law was derived from EU law but now that the UK has left the EU there may be some future divergence. Further, you may come across something called the Digital Single Market Directive, which is an EU law that was not implemented in the UK as a result of Brexit, and so it is not applicable in the UK.
Although Brexit does not immediately impact or enforce any changes to copyright law in the UK, it is worth noting that there may be divergence in the way copyright is defined in the future. In the EU, the only requirement for a work to attain copyright protection is that it must be “original”, which is not defined but generally means the expression of an “author’s own intellectual creation”.
This point was recently examined by the Court of Justice of the EU in a case known as Cofemel in 2019, [Cofemel v G-Star Raw (C-683/17)]. Currently in the UK, an author’s creation must be “original” and fall into one of a number of categories to qualify as an “artistic work” and therefore attain copyright. These additional criteria narrow the possibility of gaining copyright protection for certain designs and products and may need to be more widely interpreted in future in order to comply with Cofemel, which is considered to be binding on the UK Courts as it took place before Brexit. However, it remains to be seen whether the UK Supreme Court might diverge from EU copyright law further down the line.
If you are in any doubt about the copyright protection of your work in the UK and/or EU, you should think about obtaining advice.
The above information is provided for information purposes only. It does not, and is not intended to, amount to legal advice. You must obtain advice from a lawyer on the specific circumstances of your matter rather than rely on the information contained above. Neither The AOI nor Howard Kennedy LLP accepts any responsibility for your reliance or use of the information in this article. Dated: March 2021.
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