Digital Copyright

Digital Copyright


What Rights? A Checklist of Rights in the Digital Environment

The main right which illustrators control in the digital environment is the reproduction right. It is the right to grant or refuse permission to reproduce a work. The following types of use involve reproduction.

Storage The right to store or fix an artistic work in digital form by scanning the image and storing it in the computer memory or on disc.

Viewing No public display right for artistic works, but displaying an image on the computer screen involves making a transient copy inside the computer which results in the appearance of the image on the screen.

Downloading Paper printouts e.g. low resolution black and white or colour copies on paper. Copies on CD/DVD for transferring to another computer. Copies on DVD at high resolution intended as origination for further reproductions.

Production Distinguished from other forms of downloading for the purpose of licensing commercial production runs of CD-ROM type products. Normally includes the right to distribute the product.

Network use Reproduction, including transient reproduction and distribution in a network environment. In licensing terms an artistic work would be licensed at one or more points in the chain of reproduction and distribution involved in network use. Matters of liability and applicable law are important for network use.

Manipulation Covered by the reproduction right. Also may be covered by the moral right to prevent derogatory treatment of a work. Creation of a new work from an existing work does not affect the copyright in the existing work. If permission to reproduce the existing work is not obtained first, then the owner of the copyright in the existing work may sue for infringement of copyright. This depends on how much of the existing work has been used (‘substantial part’ – this is both a qualitative and quantitative judgement).

Copyright

Copyright

Copyright is an area which is governed by the Copyright, Designs and Patents Act, 1988. When you create a collage, painting, drawing, 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 illustrations fall into any one of these categories.

You, as creator of that illustration, own the copyright which subsists in it. There is on exception to this general rule. If you are employed to create that illustration, the employer will, own the copyright in it. There are no registration requirements. There is no requirement to use the sign © but it will help the public to realise that your illustration is protected by copyright.

If you own copyright, you are the only person who has the right to make copies of your illustrations. If someone else makes a copy without your permission, they are infringing your copyright.

You can give permission to individuals or companies to reproduce your illustration which is known commonly in the illustration trade as giving a licence. Your licence should be in writing and should set out the use that can be made of your illustration and any restriction you wish to place on the use. You can grant licences for different uses.

You can effectively sell your copyright which means that you have no further right of reproduction in your work. This is know as an assignment but will only be effective if you put it in writing.

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.

Your copyright in your illustration is an economic right. It is different from ownership of the illustration itself. You may still grant a licence or give an assignment of copyright in your illustration whilst owning the original piece. Likewise, you may sell the original illustration without giving permission for it to be reproduced.

Moral Rights

There are rights in addition to your economic right of copyright and your right of owning your illustration.

You have a right to be identified as author of your illustration. This right must be asserted in writing and should be included on any copyright, assignment or licence to reproduce or other written contract.

You have a right to object to derogatory treatment of your illustration. This means you have a right to object if your illustration has been adapted, altered, added to or deleted from. You may also be able to rely on this right if you are unhappy about the colour reproduction of your illustration or if perhaps it has been cropped in a way which distorts it.

You have a right not to be falsely attributed to another person’s art.

Copyright

Copyright: Licensing and Assignment

There are two ways to manage the copyright on your images:

Licensing Copyright

At some stage during the process of being commissioned to produce an image for a client it is wise to discover if the client wishes you to grant them a licence or an assignment of copyright. For obvious reasons, this is best done at the initial talking stage, as if you cannot come to some agreement at this stage then at least you have not wasted your own time and money producing the artwork. In most cases the people commissioning will not even mention copyright, but it is best to ask some questions first. This will also help you to come up with a realistic fee:

1. Ask who the client is.
2. What is the image to appear in or on?
3. Is the image or part of it to appear more than once in the same publication?
4. Black and white or colour?
5. What is the print run?
6. Is it to be published in the UK only or internationally?
7. How long is the image to be used for?
8. Completion date?

If all seems fine, I would either email a copy to the client or send a copy of your licence with the finished job. The client may well send you a copy of their licensing requirements along with a job sheet (an official request for you to produce the work) before you get a chance to send yours. If their terms are unacceptable, act quickly. Either phone the client and talk over your objections to the licence requirements and get them to alter their terms, or email a copy of your licence to them (with the time and date on the top). It is important that you respond in some way if you do not agree with their requirements as if you do not reply you are deemed to have accepted the contract by default.


Assignment of Copyright

When you assign the copyright of an image to a client they then own the copyright and can use the image wherever and as much as they like within the terms of the assignment. You would usually expect a considerably larger fee for work which included selling on all or some substantial part of your copyright.

If you assign the whole copyright to a client they can then use your image on ANYTHING, ANYWHERE for as long as they like. They may well have subsidiary companies which may also use the image. This is why you need to negotiate a larger fee, because once you have both accepted the terms you no longer have any hold over the image.

If possible, it is always in your best interest to license out the copyright rather than assign the whole copyright. Terms of payment must always be included in any licence or assignment agreement hence why some illustrators/designers combine an invoice and agreement.

This is only a very rough guide in an extremely complex area of law. I would suggest you also look at the AOI’s ‘Rights’ and ‘Survive’ publications.