Art dealers and copyright - friend or foe?

Posted by Simon Stokes on
Dating back to the early eighteenth century when books first got copyright protection followed next by engravings, copyright has always been in the background. Until now.

The Government is reviewing copyright law and the hot topic at the moment is whether it is fit for purpose in an age of digital downloads, Google and online piracy. And wrapped up in this is how the law protects images - whether as photographs or as underlying artistic works - as drawings, paintings, sculptures, engravings and so on both online and offline. And it is in the area of image rights where dealers need to be aware of how copyright impacts on what they do.

Copyright exists to protect the underlying “work” whether a photograph, drawing, sculpture and so on from unauthorised copying, which these days includes putting an image in an online sale catalogue just as much as in a printed catalogue. Copyright exists completely independently from ownership of the original work - so when a painting is bought from the artist, for example, the copyright stays with the artist whatever happens to the painting subsequently. Indeed the owner of the copyright will usually be the artist or their estate and the right lasts for 70 years from the end of the calendar year in which the artist died.

On 1 January 2012 artists who died in 1941 lost their copyright protection (eg Robert Delaunay, El Lissitzky). So if the artist died in 1941 or earlier, in general there is no reason to worry about copyright (including artist’s resale right, which forms part of copyright). You can take photographs of such art works, reproduce them or put them on your website without worrying about whether you need the permission of the artist’s estate (or their representative such as the collecting society DACS or the Bridgeman Art Library). However if the artist is still alive or died after 1941 you definitely do need to worry about copyright.

Typically dealers will take a photograph of their works for archival and advertising purposes: in such circumstances there will be two copyrights - that in the photograph (which the dealer needs to make sure belongs to them) and that in the underlying work (if it is still in copyright of course). If the work is in copyright then strictly speaking taking a photograph of it and then reproducing that photograph (eg in a sale catalogue or online) requires the consent of the copyright owner unless the dealer benefits from certain exceptions in copyright law. Of most benefit to dealers is section 63 of the Copyright, Designs and Patents Act 1988 which allows them to copy a work in copyright (eg to photograph a painting) in order to advertise its sale.

So it is OK to use images of your works in sale catalogues without worrying about getting consent as long as they are genuinely for sale and the use is to advertise their sale. There is however a debate about whether section 63 applies to online catalogues - the art market take the view it does, DACS take a different view and this may be clarified by the UK Government in due course.

But if you use art images other than to advertise their sale you do need to take care you don’t fall foul of copyright. And once an exhibition is ended your right to use images of works in copyright to advertise their sale also ends.

Dealers also need to protect their own copyrights - the copyright in their images of works they possess or have dealt in. High quality images of the work may have commercial value. So if you have photographs taken of your works make sure the copyright in the photographs gets assigned to you. And use a copyright notice too [copyright symbol] [art dealer] [date]. But when you take and use these images do bear in mind any rights artists or their estates may have in the work.

You may need a licence from them or eg DACS (if DACS represents them) for what you intend to do. And this typically involves paying a licence fee. Better to be careful about copyright than risk a law suit alleging copyright infringement and seeking substantial damages.

Dealers have nothing to fear from copyright as long as they pay attention to the few basic rules noted above. And they may even find their own images have commercial value, if properly protected.

Simon Stokes heads Blake Morgan’s art law practice in London and is the author of the leading text Art & Copyright (2nd edition, Hart Publishing, Oxford 2012). This article gives general guidance (legal advice should be taken where required on specific situations) and only considers the UK position - copyright laws differ from country to country.

First published in the Society of London Art Dealers Journal.

About the Author

Leading the firm's technology practice in London, Simon specialises in information technology law, including outsourcing, cloud services, protecting software IP and licensing of market leading data analytics software.

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