If you want to use an artwork such as a photograph, drawing, painting, cartoon, book illustration or other artistic work, you may need permission from the owner of the copyright. If you do want to use the copyrighted artistic work, you can get a licence to use the material.
This article sets out what you need to consider in determining whether you will need to get permission to reproduce, publish or communicate someone else’s artistic work.
Has the copyright expired yet?
When someone owns the copyright in an artwork, it is his or her exclusive right to reproduce the work, publish the work and communicate the work to the public. Only once the copyright has expired can people use the material without permission and without infringing copyright. The work is then considered to be in the “public domain”. As a general rule, the copyright duration for artistic works is the life of the creator plus 70 years.
How much of the material are you using?
You will need to get permission to use the artwork if you are using all or a “substantial part” of the work. This isn’t necessarily measured in quantity, but whether you are using an essential component of the material. It could be only a small proportion of the work as a whole, but it may be a distinctive element such that if you use it, it would be a substantial part of the work.
Considering what is the same between the original work and your reproduction is a helpful way to figure out if you have used a substantial part.
In addition to situations where the copyright has expired and where you are not using a substantial part of the work, there are a number of exceptions where permission from the copyright owner is not required. These exceptions are looked at more closely in another article.
The person who created the artwork is not always the copyright holder. For example, it could be the artist’s employer that owns the copyright.
Clearing copyright – how to get permission
The process of obtaining permission and getting a licence to use copyrighted material is called “clearing copyright”.
You will need to contact the owner of the copyright to get permission. Unfortunately, it is not always clear who owns the copyright and how you can contact them. For visual art, a publisher, gallery or museum may be a good place to start, as they may be able to lead you to the copyright owner.
Copyright owners may be a member of a copyright agency or society, and it may be possible to obtain a licence from the agency.
Also note, just because work is published anonymously and does not have a copyright notice, does not mean copyright doesn’t protect it. It just makes it harder to find the copyright owner and get permission!
If you are looking for added copyright protection, get in touch with our IP lawyers for fixed-fee advice. We’d be happy to provide an obligation-free consultation.