UK Copyright Legislation sets out various rules for determining the author of any type of copyright work. Generally he/she is defined as ‘the person who creates [the work]’. However, this is not always straightforward. Sean Egan explains.
Copyright: who owns what?
The business side of the arts world is constructed on the basis that the owners of copyright works can always be identified so that any purchaser of rights can do so with confidence. This confidence is essential if the purchaser is to make payments for the rights and spend funds on the project to make it happen. But identification is not enough unless all the requisite rights are cleared. There are a number of circumstances where unwary producers, theatres or other arts organisations can get it wrong – and that can be expensive as the mistakes tend to emerge only once a great deal of time, effort and money have been committed.
It is custom and practice that a photographer owns copyright in his/her photographs but this assumes that the photographer ‘creates’ the photographs. When an arts organisation commissions still photographs for publicity purposes and the commissioning agreement does not deal with the issue of copyright the photographer will own it. That can be a crucial issue if at a later date the organisation wishes to make use of that material over and above what was originally discussed. In many cases, there will not be a formal agreement and what was agreed may be unclear. It may be necessary to secure additional rights, which is likely to involve paying over the odds. The reason I see more disputes in this sort of situation is because photographers are often commissioned at short notice and on the basis of an order slip rather than a formal agreement. Disagreements as to who then owns rights in the photographs can be complicated and costly to resolve.
Rights can only be cleared, once ownership is established. Videos and films are categorised as the same for copyright purposes and the author of a film or video is jointly the producer and the principal director. In the context of projections for live shows, it is generally clear who the director is but the producer’s identity may not be apparent. Using films or videos requires agreements acquiring necessary rights with both the producer and the director of each item. In the case of computer-generated films the author is the person making the arrangements necessary for the creation of the work. Again, this may not be who you expect it to be.
Set designers may make use of other copyright works as part of a set in order to create a specific ambience. The legal issues of doing so can be complex. Works ‘incidentally’ incorporated need not be cleared but the notion of incidental use is vague. Essentially, it enables copyright works to be incorporated into a more substantial work so long as they do not form a principal part of it. This is particularly helpful if the use of photographs or artistic works is on a small scale. Reproducing a copyright work, e.g. blowing up an image or photographing an artistic work, should be specifically cleared. However, if artistic works are modified so that an artist’s style is being reproduced but the actual picture is not, then that does not need to be cleared in the same way.
Another area that can cause confusion and lead to disputes is the effect on copyright ownership of engaging freelancers rather than employees. Artistic Directors of substantial arts organisations are often engaged on a freelance basis, usually due to the more generous treatment of expenses. This means that the copyright of the work created stays with the Artistic Director unless there is agreement to the contrary. There may be no explicit agreement specifying what rights the company acquires in the rights – how long the work can be performed, in what territories and whether it can be used without the Artistic Director’s involvement. Any payments for use should be specified.
There are a host of rules to bear in mind when commissioning work or staging it. It is true that these sorts of issues are not frequently the cause of dispute but when they are, significant sums are likely to be at stake, not to mention reputations.
Sean Egan is Head of the Arts & Media Department at Bates, Wells & Braithwaite, Solicitors. e: s.egan@bateswells.co.uk