In brief: IP rights in art law in United Kingdom (England & Wales)

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

The author of a work made on or after 1 August 1989 is automatically the first owner of any copyright in it (Copyright, Designs and Patents Act 1988 (CDPA)). There is no need for registration. The predecessor of the CDPA, the Copyright Act 1956, provided for the same. There are exceptions to the general rule, including for literary, dramatic, musical or artistic works made by employees in the course of employment, Crown copyright, parliamentary copyright and copyright owned by certain international organisations. The copyright protection of works created by artificial intelligence was considered by the Intellectual Property Office in a consultation that ran from October 2021 to January 2022. The government sought evidence and views on a range of options on how AI should be dealt with in the patent and copyright systems. The Government's conclusions confirmed that it does not plan changes to the law for computer-generated works due to the difficulty of providing an accurate evaluation of the options and the risk that changes to the law could have unintended consequences. No changes to UK patent law are planned for AI-devised inventions either. This position was further reinforced by the recent unanimous decision by the Supreme Court in Thaler v Comptroller-General of Patents, Designs and Trade Marks ([2023] UKSC 49), which held that an AI machine cannot be an ‘inventor’ under the Patents Act 1977, and that ownership of an AI machine does not confer on its owner a right to apply for or be granted patents for anything created by that machine. The government has, however, confirmed that it will keep these areas of the law under review.

What is the duration of copyright protection?

The duration of copyright protection is as follows:

• artistic works: 70 years from the end of the calendar year in which the author dies;
• works of joint authorship or co-authorship: 70 years from the end of the calendar year in which the last known author dies;
• works of unknown authorship: copyright expires at the end of the period of 70 years from the end of the calendar year in which the work was made or if, during that period, the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first made available; and
• computer-generated literary, dramatic, musical or artistic works: 50 years from the end of the calendar year in which the work was made.

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

Yes, for paintings, sculptures and other artistic works. However, the moral rights of the author, unless expressly waived, have to be respected at all times.

In addition, under the CDPA, consent is required to perform, show or play a literary, dramatic or musical work in public.

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

Under English Law, two exceptions permit the reproduction of an artwork in printed and digital catalogues or in advertisements for exhibitions without the copyright owner's consent.

Under the first exception, the copyright owner's consent is not required for the illustration of the artwork in a catalogue or marketing brochure advertising its sale, provided that the catalogue or marketing brochure makes clear that the artwork is for sale. Once the work has been sold or the right to sell the work expires (ie, the consignment agreement expires), this exemption no longer applies. Care needs to be taken following the sale to obtain copyright consent for any further commercial use of the image of the sold artwork.

In addition, the fair dealing exception permits the limited use of copyright material without consent from the copyright owner for the purpose, among others, of criticism and review. It may be possible to rely upon the fair dealing exception in the case of printed and digital catalogues. Whether or not something is considered fair dealing is a fact-specific enquiry. As such, much will depend on the context of the catalogue. Factors to be considered are commercial use, quantity and proportionality. For example, a free leaflet or catalogue that includes guidance or commentary on the nature and purpose of the artworks in the exhibition may be regarded as fair. Advertisements, however, are less likely to fall within the scope of this exception.

In general, museums, auction houses and galleries considering reproducing an artwork protected by copyright in catalogues and advertisements will need to carefully consider the exemptions under English law and the context before reproducing the artwork without consent.

Are public artworks protected by copyright?

Certain categories of artistic works may be reproduced without the copyright owner's consent if they are permanently situated in a public place or in premises open to the public. These include buildings, sculptures, models for buildings and works of artistic craftsmanship. Copyright in these works is not infringed by making a graphic work representing it, taking a photograph or making a film of it, or broadcasting a visual image of it. This exception does not extend to all forms of public art, such as street art, therefore legal advice should be sought in relation to other artistic works.

Does the artist’s resale right apply?

The artist's resale right (ARR), also known as the droit de suite, applies in the UK. The ARR entitles authors of original works of art in which copyright subsists and their successors in title to a royalty each time one of their works is resold through an auction house or an art marketprofessional. The right to this royalty lasts for the same period as copyright in that work of art. There are certain exceptions to the ARR, including where the work being resold was bought directly from the artist less than three years previously and it is being resold for €10,000 or less. In addition, sales between private individuals, without the use of an art market professional, or to public, non-profit making museums do not attract royalty payments.

The ARR only applies when the sale price reaches or exceeds the sterling equivalent of €1,000 and is calculated on a sliding scale as follows:

Royalty Portion of the resale price

• 4 per cent up to €50,000
• 3 per cent between €50,000.01 and €200,000
• 9 per cent between €200,000.01 and €350,000
• 0.5 per cent between €350,000.01 and €500,000
• 0.25 per cent in excess of €500,000

Royalties are also capped so that the total amount of the royalty paid for any single sale cannot exceed €12,500. ARR is exempt from VAT.

Collective management of ARR is compulsory in the UK. The two main collecting societies are the Artists' Collecting Society and the Design and Artists Copyright Society, which collect and distribute the royalty. Individual artists and estates cannot seek payment directly from art market professionals.

ARR continues to apply in the UK following Brexit.

What are the moral rights for visual artists? Can they be waived or assigned?

Under English law, moral rights for visual artists are personal rights that apply to literary, dramatic, musical or artistic works and films. They were introduced by the CDPA and, therefore, only apply to artists living on or after 1 August 1989. The rights are as follows:

• the paternity right: the right to be identified as the author or director of a copyright work, which lasts for the life of the author plus 70 years;
• the right of integrity: the right to object to derogatory treatment of a copyright work, which lasts for the life of the author plus 70 years;
• false attribution: the right not to have a literary, dramatic, musical or artistic work falsely attributed to him or her as author and not to have a film falsely attributed to him or her as director, which lasts for the life of the author plus 20 years; and
• the right of privacy: the right to privacy of certain films and photographs, which lasts for the life of the author plus 70 years.

Moral rights can be waived contractually. If a waiver is agreed, its terms should be specific so as to avoid uncertainty and should include,among other things, a detailed description of the specific work, whether the waiver is subject to conditions or subject to revocation, and whether it extends to licensees and successors in title to the owner (or prospective owner) of the copyright in the work.

Moral rights cannot be assigned they will remain with the creator of the work and pass to the artist's estate on death.