You may be concerned about copyright protection if you are operating as a creative freelancer or have an ongoing business engaged in creating or commissioning artwork. Specifically, you may be wondering what you can do if another business uses your artwork without permission. This article explains your rights under Australian copyright laws and the steps you can take if another business uses your artwork without permission.
Copyright
In Australia, copyright is a free and automatic right that is granted to creative works, including the following:
- paintings;
- drawings;
- books;
- sculptures;
- photographs; and
- engravings.
Copyright also covers broader subject matter, including:
- computer source codes;
- sound recordings;
- films; and
- broadcasts.
It is important to note that your work needs to exist in a defined material form, as copyright does not protect mere ideas.
Enforcing copyright on your material allows you to stop third parties from publishing, modifying, adapting, or otherwise using the protected material without your permission. In Australia, you do not need to formally register copyright to enforce it. Accordingly, if a business uses your artwork without permission, it may be infringing on your copyright.
Copyright Infringement
Copyright infringement occurs when a third party uses any works protected by copyright without permission from the copyright owner. You do not need to prove that the wrongdoer intended to infringe your copyright or that they knew what they were doing was wrong.
For an action to be classified as copyright infringement, there must be an objective similarity between the reproduced work and the copyright-protected work. In situations where it is unclear, you should compare the reproduced work and the copyright-protected work to see if the former reproduces a ‘substantial’ part of the latter. There must also be evidence that the wrongdoer had access to the material in question.
What Does ‘Substantial’ Mean?
A defining element of determining copyright infringement is evaluating whether the works are reproduced entirely or if a ‘substantial’ part of the work is used without permission. There is no statutory definition of ‘substantial’. However, case law decisions over the years have defined ‘substantial’ to mean a part of a work that is ‘important, distinctive or essential’. Suppose a third party creates a work similar to yours. In that case, they may not be infringing copyright if the similarities are merely coincidental and they are not using a substantial part of the work.
To prove copyright infringement, you must show:
- there is a similarity between the two works; and
- evidence that the similarity results from copying, either directly or indirectly.
Remedies For Copyright Infringement
If you believe that copyright infringement has occurred in connection with your artistic work, there are a range of civil remedies available:
Injunction
You can apply to the Federal Court of Australia for an injunction. An injunction prevents a brand from using your work in the period before and during proceedings.
Damages
If another party infringes your copyright, you can seek damages against the infringing party. Damages are an award of financial compensation for any loss you have suffered as a result of the copyright infringement.
Account of Profits
Suppose the party infringing on the copyright profits from the infringement. Accordingly, you can seek an account of profits under which the copyright owner can claim the profits that a person has made by infringing copyright. This is different from seeking damages. Additionally, you cannot seek both an account of profits and damages at once.
Action for Conversion or Detention
A copyright owner can bring an action for conversion or detention concerning infringing copies of copyright works and devices used to make infringing copies. This means that the copyright owner is treated as the owner of the infringing works (and any device used to make infringing work) and has rights over this property.
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It is important to remember that while you can challenge a third party for copyright infringement, this cannot apply to scenarios where you have granted an exclusive licence to the third party. The licence holder may, in turn, be able to commence an action against other parties (except you) for the use of the artwork.
What Are Moral Rights?
In addition to the protections conferred by copyright, creators of artistic works also have ‘moral rights’. Moral rights continue to exist even after you have sold or transferred the copyright to your work. Moral rights include:
- right to attribution: you have the right to be identified as the author of the work;
- right against false attribution: where someone fails to identify you as the author or falsely attributes someone else as the author; and
- right to integrity: the work should not be subjected to derogatory treatment, which could harm your honour or reputation.
Are There Defences For Reproducing Artistic Works?
There are a few defences that apply to copyright infringement of artistic works. For example, people can reproduce a sculpture that is on permanent exhibition in a public place in a two-dimensional form, such as a drawing, painting or photograph, without infringement. However, this defence does not apply to two-dimensional works such as:
- drawings;
- paintings;
- prints;
- photographs; and
- engravings.
For example, photographing any of the above works in an art gallery may be a breach of copyright. However, there is a defence for the incidental filming of artistic works and reproduction for broadcasting purposes. If you think a brand has infringed your copyright, you should consider whether any defences apply to your circumstances.
Key Takeaways
You should seek legal advice if a business uses your artwork without permission. Unless a valid defence applies, you may likely have a rightful action in copyright infringement.
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Frequently Asked Questions
Copyright may apply to paintings, drawings, books, sculptures, photographs and engravings, amongst other works.
You can apply to the Federal Court of Australia for an injunction. An injunction prevents a brand from using your work in the period before and during proceedings.
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