If you are a creative freelancer or have a business, you have probably been commissioned to design an artwork for a brand at some point. However, what do you do if a brand uses your artwork without permission? It is crucial you understand how copyright protects you in such an event. You should also know about possible remedies. This article sets out what you can do if a brand uses your artistic work without your permission.  

What Does Copyright Protect?

Copyright gives you, as an author, artist, musician, playwright or filmmaker, the exclusive right to use, reproduce and disseminate your work. It is also your economic right to make a profit out of the work. Copyright is an automatic right, which means you do not need to register or apply for it. As a result, if someone wants to use your work, they need to ask you for permission first. That is unless you have assigned the copyright to another business as part of a terms of engagement.

Specifically, if you are an artist, copyright protects your:

  • paintings;
  • drawings;
  • sculptures;
  • photographs; and
  • engravings.

Your work needs to exist in material form, which means that copyright does not protect mere ideas. If a business is using your artwork without permission, they may be infringing on your copyright.

What Are Moral Rights?

You also have moral rights. Unlike economic 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.

When Does Copyright Infringement Happen?

Copyright infringement happens when a person or business uses your copyright-protected work without your permission. You do not need to prove that the wrongdoer had an intention to infringe your copyright, or even that they knew what they were doing was wrong. Therefore, if a business is using your artwork without permission, it may be infringing your copyright.

To be copyright infringement, there needs to be an objective similarity between the reproduced work and your copyright-protected work. In situations where it is not clear-cut, the reproduced work and the copyright-protected work should be compared side-by-side to see if a substantial amount has been reproduced. There must also be evidence that the wrongdoer had access to your work

Are There Defences For Reproducing Artistic Works?

There are a few defences that apply. For example, people can reproduce a sculpture which 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.

Photographing these works in an art gallery may be a breach of copyright.

There is also a defence for the incidental filming of artistic works, as well as reproduction for broadcasting purposes. If you think a brand has infringed your copyright, you should consider whether any of these defences apply to your circumstances.

What Are the Remedies For Copyright Infringement?

There are a range of civil remedies that apply to copyright infringement. 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. You can also seek damages. Damages are an award of financial compensation for any loss you have suffered as a result of the copyright infringement.

As the copyright owner, you can sue for infringement. However, if you have granted an exclusive licence to a person or business, they may also be entitled to commence proceedings against others except for you, as the owner.

Key Takeaways

If a business is using your artwork without permission, you should seek legal advice. Unless a defence applies, it is likely the brand is infringing your copyright. Therefore, you may be entitled to an injunction and damages, as the owner. If you have any questions, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Elodie Somerville
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