Copyright for designers

Copyright is a concept that’s often referred to but rarely well understood. From the lowliest student to the biggest design agency, we’re all protected by it – and we all risk infringing it. In this article we’ll look at the implications of copyright for two-dimensional design. Photographers and writers should be aware that there are further copyright and other issues in their fields, while product and packaging designers must consider the separate law of design right and patents.

Where copyright comes from

Today’s efforts to bring copyright law into line with modern media are nothing new. In fact, it was advances in technology that first brought copyright into existence. Until the late 15th Century, books were protected from copying by sheer impracticality: reproduction of a manuscript was a job for a roomful of monks. By 1662, however, the printing press had enabled mass production, and firms like the Church of England were getting in on the act. Cue the enactment of heavy-duty protection for the vested interests of big business and government.

The idea that authors might have rights wasn’t recognised until 1710 The Licensing Act established a register of books held by the Stationers’ Company, an early quango with the power to seize any publication that was unlicensed or hostile to the Church or state. The main beneficiaries of this law were Stationers’ Company members, who granted themselves a monopoly on printing. The idea that the people who actually wrote the books might have rights was not formally recognised until 1710, when the Statute of Anne created copyright as we know it today. This is a handy fact to remember next time some self-righteous self-appointed enforcement agency is lecturing you on how copyright has always been about protecting the artist.

Copyright law proceeded through various milestones, notably the Berne Convention for the Protection of Artistic Works and the International Copyright Act of 1886, the Copyright Acts 1911 and 1956 (which added rights for sound recordings, films and TV), and most recently the Copyright, Designs and Patents Act 1988. This has seen numerous amendments, many to harmonise protection across Europe, and a major new European directive covering electronic distribution has recently been agreed. The basic principles, however, have remained virtually unchanged since 1911, when the requirement to register works was abolished and protection became automatic.

What’s covered

Copyright exists in original literary, dramatic, musical and artistic works, published editions of such works, sound recordings, films (including videos, DVDs and so on) and broadcasts (including cable TV transmissions and so on). ‘Original’ just means that something is the result of independent creative effort; it may be quite similar to things that already exist, it may lack any artistic or intellectual merit, and it may even have been created quite mechanically, as with a database compiled from other databases.

In the UK, there’s no requirement to register works or to mark them with a copyright symbol or date of first publication. Doing so can help clarify your rights later, however, and may be essential to activate protection in countries outside Western Europe, the US and Russia. Work originated in most foreign countries is automatically protected in the UK. Copyright lasts until 70 years after the death of the author or artist (with shorter periods for recordings, films and the design of published editions).

Not all kinds of design work are protected. The largest exception is the design of objects, which isn’t covered by copyright but by ‘design right’. The details are beyond the scope of this article, but more information is available from the Patent Office. Design right mainly addresses the decorative aspects of an object, while its functionality can be protected by patents. Drawings and photos of objects are still covered by copyright, as is (or may be) two-dimensional artwork applied to them.

Copyright only protects the work itself, not the ideas behind it Copyright only protects the work itself, not the ideas behind it. This can be a fine line, but it means your brilliant dotcom concept, for example, can be imitated by someone else as long as they don’t copy your actual site design. If your website was online first, you might still be able to take action for ‘passing off’, the common-law tort of making your own work look like someone else’s (or vice versa) to take advantage of goodwill that rightfully belongs to them. Similarly, names and slogans are not usually covered by copyright, but may be registrable as trade marks. You can write ‘TM’ after a phrase to indicate that you regard it as a trade mark, warning others that to copy it might risk ‘passing off’ or other common law infringements, but you don’t have full protection unless you register the trade mark, entitling you to use the ® symbol: see www.intellectual-property.gov.uk/std/resources/trade_marks/ for details.

Finally, the medium in which works are stored or reproduced generally has no implication for copyright. Copying something from or to the internet is no different from copying it on paper.

Owning copyright

It will be clear from the above that the vast majority of work by two-dimensional designers automatically attracts copyright. But it may not be the designer who owns it.

As you should already be aware, copyright in anything you create in the course of employment normally belongs to your employer. When you’re commissioned by someone who isn’t your employer, the first right to the work remains with you, while the client gains a limited licence to reproduce it. The exact terms of this licence are up to you and the client to agree (see ‘Using copyright material’, below).

Designers’ contracts of employment should lay down precise terms of copyright ownership, but often don’t, and as a result many designers who hold down a job while also taking on freelance work leave themselves open to action for copyright infringement by their own employers. Many will feel that moonlighting is accepted within the industry, but intellectual property specialist Tim Ludbrooke, a barrister at 7 New Square, warns that assumptions may be dangerous. “What constitutes ‘course of employment’ is a tricky area in itself. There’s a lot of difficulty about doing the same thing with different hats on. Most judges would feel the onus was on the employee to ensure there was no infringement.”

It’s certainly not as simple as ensuring you only do freelance work in your own time. More important is avoiding any similarities between work done for outside clients and work done for your employer. There’s also a ‘duty of fidelity’ to your employer, which rules out working for clients who could be seen as rivals. Add the fact that many designers use their employer’s premises and equipment for freelance work, and any court hearing could start off with a significant bias towards the employer. You may think you’re not at risk because you have an understanding with your boss, but if things ever turned sour you could find yourself not only out of a job but with a lawsuit hanging over your head.

The best way to protect yourself is to ensure everything is out in the open. If your contract doesn’t specify what you can and can’t do, discuss the issue with your boss, keep a record of the discussion, and try to exchange memos on the subject. If your employer has been made aware of your presumption that you own the copyright to any work not specifically undertaken as part of your job, and hasn’t contradicted this, you’ll be in a stronger position.

Moral rights protect your work from being ‘distorted or mutilated’ Where you do own the copyright in any of your work, you also have certain ‘moral rights’ as its author. This relatively new aspect of copyright attempts to protect your right to be credited for your work and to prevent it from being unreasonably ‘distorted or mutilated’. In practice, it hasn’t had much impact on designers.

Your moral rights only come in to force if they’re ‘asserted’. This is why you’ll find statements at the beginning of recently published books to the effect that ‘so-and-so has asserted his/her right to be identified as the author’. That’s great for novelists, but the law specifically excludes newspapers and magazines, so in these media your work can be dragged through a hedge backwards and credited to Rumpelstiltskin without any comeback. Secondly, regardless of medium, you can choose to waive your moral rights – and most clients will demand that you do so.

If you’re a publisher or art director, of course, you’ll be glad that you’re not going to end up in court because you had to fiddle with an illo or accidentally omitted a credit. Be sure you’re subject to an exclusion or waiver, however, or that’s exactly what could happen.

Using copyright material

Which brings us to the issue of using other people’s copyright work. If you’re doing this overtly and in collaboration with the copyright owner, you should agree terms between the two of you. When you commission an illustrator to produce original artwork for publication in a magazine or newspaper, you would normally expect to get the right to use that work on a single occasion (for example, on a particular page of a magazine), and to be the first to publish it. In most cases you’ll also want to have exclusive use for a certain time, such as the shelf life of a periodical, which should be specified; some clients have a standard contract requiring an exclusive period of three or six months.

If you want any rights beyond this, you should expect to pay extra for them. After a period of exclusivity, the designer will be free to sell the work elsewhere (though in practice this rarely happens), or to re-use elements of it. If you don’t want the same illustration to be used by rival companies, for example, you’ll need to negotiate this restriction. If you want to re-use the illustration on a future occasion, you should expect to pay a fraction of the original cost for each re-use. Publishers commissioning work for regularly re-use, such as templates for a magazine, need to ensure they have the appropriate rights. At the far end of the scale, advertising clients will typically want to buy all rights, and this is one reason why designers expect better rates from them.

There are exceptions to copyright, but fewer than you might thinkThings get more complicated when it comes to copying existing work. Whether you want to reproduce a painting as a magazine cover, re-use an illustration published elsewhere, or incorporate an anime character into a montage, you can’t legally do it without the permission of the copyright owner. There are exceptions to copyright protection, but far fewer than you may think. The law says you can reproduce limited portions of work for private study, for criticism or review, in reporting current events (excluding the use of photographs) and in the course of teaching. Even within these narrow limits, you’re further bound by the rule of ‘fair dealing’, which is typically judged on the basis of economic impact on the copyright owner.

There’s no rule that an image posted on the internet loses copyright protection. There’s no rule that material published without a copyright notice can be copied. There’s no rule that a bad scan of a piece of artwork has any less protection than the original.

This leaves only one situation where you can copy existing material without permission, and that’s when it’s out of copyright by virtue of the original artist having been dead for 70 years. Unless you’re copying directly from the original work, you’re still not home free. A painting may have been completed 700 years ago, but that doesn’t mean you can copy a photo of it: you’re infringing the photographer’s copyright. Even a scan, insofar as it took skill and labour, attracts copyright protection.

You must also bear in mind that the ‘copy’ in copyright refers to any copying, not just large-scale duplication. So if you copy an image off the internet to your hard disk with a view to using it in an illustration, you’ve already infringed copyright; it doesn’t only happen when your final illustration appears in 50,000 copies of What Lawyer? magazine.

If this all seems to imply that every designer must infringe copyright at least once a day, well, that’s probably true. So what consequences await us wanton lawbreakers?

Copyright infringement

Although copyright infringement can be criminal offence, it’s normally only pursued by the police and the Crown Prosecution Service in cases of commercial and usually large-scale counterfeiting. The more likely result of everyday infringement is a civil action by the copyright owner.

Does legal action over copyright really happen? Yes You might think that, since legal action is expensive and copyright infringement commonplace, copyright owners are unlikely to bother suing you. Does it really happen? ‘Yes,’ says 7 New Square’s Tim Ludbrooke. All the time? ‘Yes.’ Even over, say, a single use of an image? ‘Yes.’ Oh dear. ‘It depends on how litigious the copyright holder is, but if you’re relying on them not finding out, or on having changed the original material “enough”, you may be in trouble.’

Fairly obviously, bigger players are more likely to sue, but this generalisation can’t be relied on. ‘Some small copyright owners don’t take a commercial view about litigation,’ warns Richard Hodgson, a barrister with IP specialists Design Chambers. ‘Cases can become very personal, and they will sue even if advised their chances are 50:50, tops.’ Nor will they necessarily be put off by the cost. ‘Copyright owners may have litigation insurance or no-win, no-fee arrangements with their lawyers.’

When it comes to mounting a defence, things can quickly get expensive – and complicated. The action will most likely be against your client, as the publisher of the infringing work and the party with the deepest pockets. ‘The client would then seek to “join” the designer,’ explains Hodgson. You might assume it would be your client’s responsibility to ensure it didn’t publish infringing work, but in fact the onus is on you. ‘If the client had no creative input, and the contract between designer and client was silent on the subject of indemnity, I would expect the client to require the designer to indemnify it,’ says Hodgson.

This leaves you, the designer, with the bill for a defence but little control over it. ‘The client may well put its hands up immediately and offer to pay costs and some damages,’ says Hodgson – remember, these are coming out of your pocket – ‘or it might fight the matter all the way to a full hearing in the High Court.’ If it loses – and, of course, if you have infringed copyright, the chances are it will – you could end up paying your own costs, your client’s costs, and about 70% of the winner’s costs, on top of any damages awarded. ‘The total could vary from a few hundred pounds to a few hundred thousand pounds. Few will escape with a bill of less than a few thousand,’ estimates Hodgson. Many cases are settled before they reach court, but the amounts involved can still be large.

Professional indemnity insurance covering copyright infringement may be available, but the premiums are likely to be too expensive for freelancers.* The only way to protect yourself, Hodgson concludes, is to be extremely cautious. ‘Take extra care and seek advice and/or clearance for anything that raises even a nagging doubt.’ You may be able to stay on the right side of the law and still use the material you want. ‘Some copyright owners are surprisingly willing to grant clearance for little or no fee if full attribution is given.’

Beware, though, of getting clearance from someone who does not in fact hold the copyright. Frank from Belgium may have no problem with you reproducing a screen grab of the SuperMegaMan arcade machine from his website, but that won’t help when you get a letter from the game manufacturer’s lawyers. Even if you’re dealing with the original artist, he or she may not own all the relevant rights. The person or company giving permission should confirm in writing that it has the right to license your usage and indemnifies you against any action for copyright infringement.

Conclusions

As you’ll gather from all of the above, it’s fair to say that the law is generally on the originator’s side. This is of the essence of copyright, which is a negative right: rather than guaranteeing anyone’s freedom to act in a particular way, it provides for people to prohibit certain actions on the part of others. You may well feel that, as a matter of natural justice and common sense, you must be free to borrow from other people’s work to a certain degree, and you may well be right; but the onus is on you to prove that, by doing so in a particular instance, you’re not breaking the law.

The best way to learn is to copy. How can this be reconciled with the provisions of copyright law? Ask any experienced designer the best way to learn the trade, and they’ll tell you: ‘Copy.’ It’s by building on what’s been done before that new talent is developed and progress made. How can this be reconciled with the draconian provisions of copyright law? Fortunately, there isn’t yet a security camera peering over the shoulder of every designer, and many practices which technically constitute infringement are likely to go undetected. A good understanding of copyright law is vital, but the basic principle of everyday compliance is straightforward: don’t take the piss.

This means asking yourself whether you’re really ripping off somebody else’s work, or just drawing inspiration from it to create something that’s different, original, and genuinely yours. Strictly speaking, inspiration should happen only in your mind and not on a template layer in Illustrator, but ‘if the end result is unrecognisable,’ concedes Ludbrooke, ‘the infringement is unlikely to come to light.’ What he stresses, however, is that you must consider what would happen if it did come to light. If in doubt, leave it out – or get permission.

How much can I copy?

We’ve all heard of the ‘ten per cent rule’. As long as you don’t copy more than ten per cent of an image, or you change at least 90 per cent of it, it’s not an infringement of copyright. Some people say 15 per cent, some 20, so it’s possibly a bit of a grey area, but everyone knows that’s the basic principle. Right?

Horribly, dreadfully wrong. ‘There is no such principle at all,’ says barrister Tim Ludbrooke. ‘Absolutely none,’ agrees Design Chambers’ Richard Hodgson. The law says that infringement takes place if ‘all or a substantial part’ of a work is copied, but ‘substantial’ doesn’t simply refer to quantity. In many cases very tiny parts have been ruled to be substantial.

Both barristers cite the recent case of Designers Guild Ltd v Russell Williams (Textiles) Ltd as an instructive example. Here the law lords considered what would constitute copying of a substantial part, and found that it didn’t simply depend on the similarity of the allegedly infringing work to the original. The copied features had to represent a substantial part of the skill and labour contributed by the original author, but needn’t form a substantial part of the defendant’s work. So an infringement could have taken place even though the two looked completely different.

What does this mean for designers who routinely grab bits and bobs of imagery from the internet, old magazines, videos and other sources, and comp them into multi-layered Photoshop extravaganzas? ‘They should be very concerned,’ says Ludbrooke, with characteristic understatement. As in, ‘Sir, there are 4000 Zulus coming against you. You should be very concerned.’

So how can you collage with confidence? The straight answer is that you can’t, unless you really have the time and patience to find and negotiate with the copyright holder of every image you use. You can minimise the risks, however, by avoiding the sort of material that’s most likely to provoke litigation. Forget classic cartoon characters: copyright will be the least of your worries if you infringe such jealously protected trade marks. If you want the face of a celebrity, pinch it from the most boring, least distinctive photo you can find and you may just avoid action by the photographer. (Be sure you’re not using it to sell or endorse anything, or the celebrity him/herself, or his/her estate, will be on your back.) When relying on blanket permissions, as with publicity materials, ensure the copyright owner is correctly credited.

In short, don’t get cocky. Using ‘found’ material may be oh-so-postmodern, but it could land you in front of a judge with distressingly traditional values. ‘Every creative industry seems to have its own rule of thumb for allowable “percentage copying”,’ groans Hodgson. ‘Rest assured, the courts will not be impressed.’

Trademarks

An obvious issue in corporate identity and promotional work, trademark law can also rear its head for the editorial illustrator. Trademark protection is a bit like copyright protection, but with knobs, flashing lights and Robot Wars-style ninja weaponry on. So when you’re asked to knock up an illo for a story about a particular company, with a brief along the lines of ‘do something arty with the logo’, alarm bells should ring.

First of all, the logo is protected by copyright. That’s not so bad, because there’s an exception for the reporting of current events, as long as your use counts as ‘fair dealing’. This should be the case where the company is the subject of the story. As for the use of the trademark per se, your get-out clause, explains Tim Ludbrooke at 7 New Square, is section 10.6 of the Trademark Act 1994. This allows ‘the use of a registered trademark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee’.

So if you’re showing a company logo simply to indicate that the story is about that company, that’s generally OK. Then again, if your use ‘without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trademark’ and is not ‘in accordance with honest practices’, it will be an infringement. If the story is defamatory, you’re also about to risk something called trade libel, which is like libel but with knobs, flashing lights and… you get the picture.

Design Chambers’ Richard Hodgson advises: ‘Above all, do not try to be too clever.’ Only use a logo when it’s directly relevant, don’t mess about with it, and don’t risk direct infringement by using one company’s logo on a story about another’s products or in a publication linked to a competitor.

Image libraries

Image libraries offer a convenient way to source existing photos and illustrations with copyright clearance taken care of. It’s important to understand what rights you’re buying, however, and not to exceed their limitations.

There are three main types of library. The first is licence-based, where you negotiate a fee to use an image for a particular purpose. Advertising and promotional use will be charged at higher rates than editorial; covers at higher rates than run of page; mass-market titles at higher rates than those with smaller circulations. The initial quote will be based on a rate card, but a degree of haggling is expected. A standard period of exclusivity is normally offered, which again is negotiable. Fees may range from a few tens of pounds to several thousand, depending on context and size.

You’re not buying the image itself (the print or transparency supplied must be promptly returned to avoid exorbitant replacement fees), nor any permanent rights to it, just the right to use it on the one occasion discussed. You can’t use it again – for example, on a website, or in a foreign edition, or even a reprint – without negotiating a new fee.

The second and increasingly popular option is ‘royalty-free’. Often accessible online, with do-it-yourself searches and high-resolution images downloaded after payment, these libraries offer unlimited non-exclusive publication rights. Having paid for an image, you can use it as many times as you like, within the limitations of a general-purpose licence. Tip: read the licence.

The third and trickiest type of library doesn’t handle copyright at all. Its wares are legally sourced, but your payment only covers supply of the image, not rights. In most cases the assumption is that the copyright holder has placed the images in the public domain or has stated that they may be freely reproduced if appropriately credited; a typical example is stills used to publicise films. But if you choose not to contact the copyright owner and obtain express permission, you accept the risk of infringing copyright.

Digital watermarking

One way for copyright owners to protect their intellectual property against the onslaught of digital technology is to turn that technology to their own advantage. In the design arena, one of the cleverest and (in theory) least intrusive forms of copy protection is digital watermarking.

This has nothing to do with the highly visible ‘watermarks’ often superimposed on comping (positional) images supplied by photo libraries. Digital watermarks are completely invisible, and are created by applying subtle changes to the brightness of selected pixels within an image. This creates a pattern capable of storing a few bytes of information – enough for a brief text string carrying details of the copyright owner. The data can be read by a compatible plug-in such as the Digimarc reader built into recent versions of Photoshop.

The idea is that if you watermark your images before releasing them to clients or onto the internet, the embedded information will alert users to the fact that you hold the copyright, and enable you to identify illegal copies. The watermark is intended to survive processes like resizing and printing. Digimarc, currently the market leader, even offers a service which constantly trawls the web for watermarked images and lets you know about any containing your creator code.

The enforcement value of watermarking is debatable, since the issue of whether a copy infringes your rights will always be settled by reference to visual similarity. Nor is a watermark guaranteed to reflect genuine ownership, since any image that isn’t already watermarked can be redistributed by any user with any information they care to enter. Perhaps the greatest practical value lies in popping up a copyright message as soon as anyone opens a copy of your image. If they were planning to license it, they know who to call. If they were planning to rip it off, they may think twice.

Copyright in typefaces

When you design a typeface, as with other work, you own the rights unless you’re working for an employer. If you manage to sell the face to a foundry, the deal will be for a limited licence. ‘The licences between designers and foundries vary tremendously,’ reports type expert Bruno Maag, ‘but in most cases the designer retains all the intellectual rights.’ You’ll only have the rights in the first place, of course, if you’ve drawn the font from scratch. Fonts derived from existing work can’t be redistributed without the permission of the copyright holder. You can create a ‘revival’ of a font that’s out of copyright, but mustn’t start the process by copying a foundry’s software without permission: you must retrace the letterforms. Copying existing font data is known as ‘point theft’.

Protection for typefaces is one of the few remaining aspects of copyright that’s never been harmonised between Britain and the US. Essentially, we see fonts as decorative work, which attracts copyright, while the Yanks see them as functional objects, which don’t. Thus some US companies assume they can reproduce anyone’s fonts at will, and redistribute them for profit, as long as they change the names to avoid trade mark infringement. Hence the vast array of US-derived font collections promising thousands of faces for a few quid. Some of these are created by duplicating the data from legitimate foundries’ fonts, which again is in fact illegal, since the data is protected by software copyright even in the US. Others are created by auto-tracing fonts, a process that typically results in crappy letterforms and dodgy kerning. Nice.

US organisation TypeRight offers guidelines for ‘ethical type design’ and lobbies for full copyright protection, while in the UK retailers such as FontWorks are happy to advise on font licensing issues.

CASE STUDY: AA/Ordnance Survey

Forget the Spanish Inquisition: beware the copyright enforcement department of the Ordnance Survey. Owned by the government but allowed to spend its own profits, Britain’s official cartographer licenses maps for use in commercial products. During the 1990s, however, the AA preferred to draw its own maps, avoiding OS fees.

Unfortunately, in 1996 sharp-eyed OS experts discovered that over 400 of the AA’s maps looked suspiciously familiar – even down to tiny features, known as ‘fingerprints’, that bore no relation to the real world but were incorporated as part of a house style. These weren’t exactly ‘deliberate mistakes’, but included such things as the nominal width of roads.

The AA’s parent company, Centrica, says it meant to draw the maps from scratch but ‘processes were not as robust as they should have been’. Surely a line worth remembering. ‘Darling, I really didn’t mean to be there till closing time, but processes weren’t as robust as they should have been.’ Centrica has now settled with the OS for £20 million.

Ordnance Survey maps can be reproduced in return for a licence fee; see www.ordsvy.gov.uk. Reproduction not for direct commercial exploitation – for example, printing a map showing your company’s location – is covered by an annual fee starting from £45. So there’s really no need to get crucified.

CASE STUDY: Urban75/Narconon

Urban75 is a UK website featuring direct action, rave culture and drug information, among other interests. Its design, however, is rather conservative and notably elegant. In fact, it’s so attractive that it seems to have proved irresistible to the web designers at Narconon, a US-based interventionist anti-drug organisation with a rather different agenda from urban75 but amazingly similar taste in site structure, tints, rules, navigation and graphics.

When Narconon’s sites, www.ecstasyaddiction.com, www.heroinaddiction.com and www.marijuanaaddiction.com, appeared last year, Urban75’s flattered but surprised creators quickly discovered that they not only bore a striking visual resemblance to their own earlier (and widely publicised) work, but even used large chunks of identical HTML and JavaScript code.

Urban75 has not taken legal action, although it would seem to have grounds to sue for copyright infringement and passing off. After complaints to Narconon’s ISP, Earthlink (which, like Narconon itself, is associated with the Scientologist organisation), the sites have been changed. An urban75 statement summarises: ‘Our biggest concern is that people are going to associate urban75 with Narconon and we wonder if targeting a site such as ours for such an unexpected “tribute” was entirely accidental.’

If this was indeed an attempt to appropriate the opposition’s clothing, it was one that showed a stark ignorance of copyright law.

CASE STUDY: MacUser/Picasso

Nearly a decade ago, MacUser was involved in a minor but instructive copyright spat over an hommage to one of the 20th century’s greatest painters. In the early days of Photoshop, an illustrator was commissioned to produce a cover image in the style of Picasso. The artwork was duly created, without the use of any copyright material but, as requested, with the end result definitely calling to mind Picasso’s work. Well, a particular period in his career. Well, all right, one particular painting.

Nonetheless, nobody had grabbed a Picasso off the wall and stuck it on a scanner, so the whole thing seemed quite above board. The magazine was duly published. And along came a letter from the estate of Pablo Picasso.

The matter was settled without court action, but suffice it to say that aping an artist’s work is not necessarily any better than reproducing it outright. In fact, with the introduction of moral rights prohibiting derogatory treatment, it may be worse. The case also highlights the possible danger of assuming public figures (and their work) are public property. He may have been a legend, but Picasso had the same rights as any other artist, and has been dead considerably less than 70 years.

Golden rules

It’s probably OK if:

• I’m copying for my own private reference, not as the basis for publishable work; or
• I’m using a small example in an editorial context referring to the author/copyright holder; or
• The author/artist has been dead for more than 70 years and I’m not infringing an intermediary’s copyright; or
• I have reason to believe a blanket permission applies (eg publicity material or other material labelled with a general licence or waiver)

Otherwise, before you copy without permission, ask yourself:

• Will the material be recognisable in my final work?
• Why do I think the owner won’t see it?
• Why do I think the owner won’t sue?
• How would I react if my work was copied in a similar way?
• Am I compounding the offence by mutilating the work?
• Am I compounding the offence by using the work in a way that might be offensive to the owner or damage its reputation?
• Would my client/employer be happy knowing about the infringement?
• How hard would it be to get the owner’s permission?
• How hard would it be to do without this material?

Danger: least advisable infringements

• Owner specialises in copyright licensing (eg image library, Ordnance Survey); or
• Owner is identified in material (eg logos); or
• Trade mark protection may apply (eg logos, characters)

Further info

Detailed guide to copyright and related rights in UK law: www.intellectual-property.gov.uk

More on design right and patents: www.patent.gov.uk

Intellectual property lawyers: www.designchambers.com, www.7newsquare.com

The barristers quoted in this article were asked general questions and their replies may not apply in all circumstances, nor do they constitute legal advice. Barristers are not instructed by members of the public, but by solicitors acting for them. In the event that you are approached by a copyright owner alleging infringement, you should instruct a solicitor to reply on your behalf as quickly as possible. This can be handled by any solicitor, who may brief a specialist barrister. Solicitors specialising in IP can be found via the Law Society directory.

First published in MacUser, 29 June 2001

Tagged as: Art, Business, Copyright, Design, Law, MacUser, Photoshop, Web design