Dealing with Copyright Infringement
How to avoid copyright infringement
“All my ideas are stolen anyway”, as once said by acclaimed British artist Damien Hirst.
We see this time and again – an artist using an existing work, without that original creator’s authorisation, as the basis for their artwork. Since the mid-20th century there has been a proliferation of appropriation art, amplified by the technological ease of access to information. This has no doubt also contributed to the rise of copyright infringement lawsuits over the years. Our Intellectual Property Solicitors have taken this subject for this week’s newsletter.
Artists who use appropriation in their practice, and the galleries that represent them, are often unaware of the legal risks associated with producing such art. These risks are dependent on whether the original work is protected by copyright and, if so, whether the second artist has made fair use of that copyrighted work. To recognise whether a claim for copyright infringement could occur, the following points should be considered.
1. Does copyright attract?
Copyright is the protection that vests in original works of the mind expressed into material things. Under English law, copyright protection is legislated by the Copyright, Designs and Patents Act, 1998 and vests in the following descriptions of work:
original literary, dramatic, musical or artistic works
sound recordings, film, broadcasts or cable programmes
the typographical arrangement of published editions.
The author of a work has the first claim for copyrights. For copyrights to attract, the author must establish that his or her work is:
Sufficiently original
Sufficiently expressed
One of the 8 enumerated categories
Fixed in a tangible form.
What qualifies as “original” is not defined by legislation but is informed by case law, through which, the UK has adopted a low threshold in requiring “sufficient skill, labour and/or effort” to warrant the status of “original.”
Under the CPDA, original literary, dramatic, musical or artistic works are protected. Technical requirements for copyright protection to arise include that the claim must be made within the copyright period, and the author of the work is a citizen or resident of the UK or EU. Generally, for artistic works, the copyright protection period expires 70 years from the death of the author.
2. Has the copyright been infringed?
If the author has copyright ownership, then he or she has the exclusive right to copy the work, issue copies of the work to the public, communicate the work to the public, and make an adaptation of the work or do any of the aforementioned in regard to an adaptation of the work.
Acts that may qualify as copying are outlined in section 17 of the CPDA, however there is no bright line test. The courts will look to the overall impression of the copied work and consider whether it is substantially similar to the work that copyright protection has been claimed over.
3. If there is copyright infringement, is there a defense?
The CPDA provides enumerated defenses to copyright infringement. Should a court conclude that copyright infringement has occurred, the ‘copier’ would have a defense under section 30A of the CPDA, which makes copyright infringement unenforceable when there is “fair dealing with a work for the purposes of caricature, parody or pastiche.” Beyond the CPDA defenses, copyright protection may be denied if there is a public interest at stake to do so.
4. What are the remedies for infringement?
In an action for copyright infringement, the author may seek relief by way of damages, injunctions, accounts or otherwise is available to a claimant in any other property right. Furthermore, if the author has copyright registration, he or she may be able to claim higher damages.
5. Is a claim imminent?
The owner of a copyrighted work is entitled to assign or license his or her copyright. If the author is claiming copyright protection, he or she may be open to negotiating the assignment or licensing of said rights. The author might also choose to commence a claim, particularly in contentious matters.
In any event, the lengthy list of copyright infringement case law suggests that staying silent on the matter and leaving it to chance that the original author will not notice the use of his or her work could be a risky gamble.
To discuss any questions or concerns on copyright protection or infringement, please schedule a discovery call with our IP and art law specialist.
Book a call with our Intellectual Property Solicitor today ↓
Head of Litigation, IP & Art Law
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