Copyright and Reproductions

All exhibitions are now likely to involve copyright and reproduction in some way. Gone are the days when exhibitions consisted of only a physical element. Now visitors, researchers, bloggers, curators and other parties fully expect a digital element to be part of an exhibition. Supporting material such as catalogues will also be expected, as will merchandise, not only as part of the visitor experience but also by venues themselves as they come under increasing pressure to generate income. All this activity, and more, centres around copyright, reproduction, and sometimes other kinds of intellectual property (‘IP’).

It does not necessarily confer that the owner of an object or artwork, be that a museum or gallery or private individual, is the copyright holder.

In cases where the exhibit, and/or photograph of the exhibit, is protected by copyright, the written consent of the copyright owner must usually be obtained before any reproduction is made (except in some circumstances – see below).

The statutory moral rights of the artist/creator must also be respected (see below), whether or not they are the copyright holder.

Further, if you are borrowing a work for inclusion in a touring exhibition, in all cases, written or email consent to reproduce an image of the object must be obtained from the lender. This includes exhibits where copyright never existed or has expired or where the proposed reproduction is a ‘restricted act’ in copyright terms (see below).

Where the lender is not the owner of the exhibit (e.g. if the lender is a museum which has the exhibit on loan from the owner), the consent of the owner will also be needed if the owner has imposed restrictions on reproductions as a condition of its loan.

In all instances credits/acknowledgements to the lender, artist/creator and photographer must be agreed.

Contracts will be required to formalise agreements with the lender, owner and/or photographers on the one hand and publishers and/or venues on the other.

The advice contained in this document should be regarded not as ‘legal advice’ (always seek specialist legal advice in given situations), but as best practice based on UK copyright law.

In the UK, copyright is governed by the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’), which came into effect on 1st August 1989. The 1988 Act has been amended by various EC Directives which came into force at different times. Substantial revisions to UK copyright law also came into effect in 2014 following two major Government consultations (the Gowers and the Hargreaves reviews).

Copyright prevents the following original works from being reproduced, issued, performed, communicated to the public or adapted without the consent of the copyright owner:

• Original literary, dramatic, musical and artistic works (in the case of dramatic and musical works this includes the printed reproduction of lyrics etc. as well as their performance);
• Sound recordings, films and broadcasts;
• Typographical arrangements of published editions.

Copyright is usually first owned by the creator even where the work is commissioned by someone else. The exception is work created in the course of employment, where the employer will own the copyright.

If a work is created by a volunteer, freelance, intern or other person not having ’employee’ status, and there is no written agreement to the contrary, copyright of the work will automatically belong to the volunteer, freelance, intern or non-employee. It is therefore essential to address copyright and other forms of IP in such contracts.

The copyright owner may transfer or assign copyright to someone else, in writing.

In the UK and most other countries, copyright normally lasts for 70 years after the end of the year in which the creator dies. If the creator is unknown, copyright usually expires 70 years after the end of the year in which the work was made or first published.

As essential point to note is that ownership of copyright is distinct from ownership or possession of the exhibit itself. A gallery or a museum, therefore, will not necessarily own the copyright of the objects on display.

Photographs of exhibits are separate copyright works distinct from the exhibits themselves.

Certain ‘permitted acts’ of reproduction are allowed without infringing copyright, providing sufficient acknowledgement is given. These are sometimes also known as the ‘copyright exceptions’. The main ones relevant to museums are:

• Fair dealing with a work for criticism, review, quotation or for reporting current events (although reporting current events does not apply to photographs);
• Fair dealing with a work for non-commercial research and private study;
• Reproducing an ‘insubstantial’ part of the work;
• Incidental inclusion of a work within another (although this does not apply to music);
• Copying a collection work for preservation purposes;
• Reproducing a work for caricature, parody, pastiche;
• Use of collection works on ‘dedicated terminals’ within the museum;
• Use of works for instruction;
• Photographs of sculpture and other works of artistic craftsmanship on permanent display in public.

Sufficient acknowledgement of at least the work’s creator and title should be given wherever possible.

Although the CDPA 1988 is the current legislation, previous law may still be relevant for earlier works, e.g. the commissioner is usually the owner of copyright in commissioned photographs taken before 1st August 1989. Specialist advice should be sought in cases of doubt.

Moral rights were introduced into UK law by the CDPA 1988, and exist independently of copyright. They are retained by the creator (or his/her heirs) and cannot be assigned or transferred (although they can be waived).

Under the right of ‘paternity’, creators have the right to be identified when the work is publicly exhibited, published or otherwise communicated to the public. Paternity right must be asserted by the creator, usually by including appropriate wording in contracts with galleries, publishers, etc. Assertion normally only affects the person to whom it is given or to whose notice it is brought. Paternity right lasts the same length as copyright.

The right of ‘integrity’ gives creators the right to object to certain ‘derogatory treatments’ of their work. These might include altering the work, e.g. cropping an image, colourising a black and white photograph, overlaying text on an image or reproducing it in a different context in an advertisement. Integrity right lasts the same length as copyright.

The right of ‘false attribution’ gives individuals the right not to be named on works they have not created. It lasts for 20 years after the death of the individual who is falsely named as the creator.

The right to ‘privacy of certain photographs and films’ applies to persons who commissioned the taking of a photograph or making of a film for private and domestic purposes. Amongst other things, it allows the commissioner to prevent copies of the work being exhibited in public or otherwise communicated to the public. It lasts for the same term as copyright.

These statutory rights can be supplemented or varied by contract wording. For example, a photographer may be required to ‘waive his or her moral rights’.

The lender should:

• Notify the exhibition organiser about copyright in the exhibit and in any photographs to be supplied.
• If the lender is not the owner of the exhibit, ensure that the lender is not restricted by its contract with the owner from authorising reproductions.
• If there are restrictions, agree with the organiser who should contact the owner for consent.
• Agree with the organiser the extent of permitted reproduction(s) of an exhibit and any photographs supplied.
• Specify wording for credits and acknowledgements to accompany reproductions.
• Supply existing or new photographs to the organiser.
• If new photographs are to be taken, ensure that the copyright is assigned to the owner as agreed, or at the very least that copyright is addressed within such contracts.
• Label all new photographs or digital files with the copyright symbol, name of copyright owner and date of first publication, for example ‘Tate 2014’

The organiser should:

• Identify any exhibits that are to be reproduced and to which copyright might apply, e.g. where the creator is still alive or has been dead for less than 70 years, or where photographs are supplied by the lender.
• Obtain the consent of the copyright owner(s) to any reproduction(s): if the lender is the copyright owner, see loan agreement; otherwise, see separate copyright consent.
• If the lender is not the owner of the exhibit, ensure that the lender is free to authorise the requested reproduction(s).
• If the lender cannot authorise the requested reproduction(s), agree with the lender who should contact the owner to obtain consent.
• Agree with the lender the extent of permitted reproduction(s), and embody this in the loan agreement.
• Request photographs from the lender or, if agreed, make arrangements for new photographs to be taken.
• If new photographs are taken, ensure that the copyright in these photographs is assigned to the lender or owner as agreed; see the sample copyright assignment.
• Agree credits/acknowledgements to artist/creator, lender, owner and photographer as appropriate.
• Advise venues of any restrictions on reproduction, any special requirements and any assertion of moral rights, and embody these in the hire agreement or advance information; see the sample permitted reproductions.
• Label all new photographs or digital files with the copyright symbol, name of copyright owner and date of first publication.
• Return photographs or digital files to the lender at the end of the tour, unless otherwise agreed.

The venue should:

• Observe any restrictions on reproduction or any special requirements imposed by the organiser.
• Ensure that, if any new photographs are permitted, the copyright is assigned to the lender or owner as agreed.
• Label all new photographs or digital files with the copyright symbol, name of copyright owner and date of first publication.
• Ensure that proper credits and acknowledgements are given, and statutory moral rights are respected.

Where the consent of the copyright owner is needed to permit reproduction, this should be in writing signed by the copyright owner and the organiser. No particular form is required, and a succinct, clearly expressed exchange of letters or emails will suffice, dealing with:

• Form of reproduction (e.g. catalogue, website, postcards, social media etc.).
• Number of copies (if restricted).
• Duration of permission.
• Any quality requirements, e.g. approval of colour quality or size of images files.
• Ownership of copyright in any new photographs.
• Agreed credits/acknowledgements.
• Any fees or royalties.

The sample copyright consent contains a suggested form of words that can be adapted as necessary, including where the exhibit or photograph is copyright-expired but the owner’s consent to the reproduction is still needed.

For identifying copyright holders, try the following sources:

• DACS (Design and Artists Copyright Society)
• BAPLA (British Association of Picture Libraries and Agencies)
• Bridgeman Images
• National Portrait Gallery
• Tate
• V&A
• Public Catalogue Foundation
• Imperial War Museum
• British Library
• Museums Copyright Group
• WATCH (Writers, Artists and Their Copyright Holders)
• PRS for MUSIC

If copyright holders cannot be identified, see ‘orphan works’ below.

If, despite research, a copyright holder cannot be traced, then the organiser must face the risks of unresolved copyright. Works whose copyright holder cannot be identified or traced are known as ‘orphan works’.

On 29 October 2014, two pieces of legislation came into effect to help with orphan works:

A UK licensing scheme – see here for details: https://www.gov.uk/guidance/copyright-orphan-works, and

An EU exception – see here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:299:0005:0012:EN:PDF

Here is a comparator of the two solutions:

Orphan Works – EU Exception vs UK Licensing Scheme

If an exhibition organiser decides not to take advantage of either scheme, some of the issues to consider include the following:

• Has a reasonable amount of research and ‘due diligence’ been carried out?
• Have the recommended resources (plus specialist sources as necessary) all been checked for copyright holders’ details?
• Has a copy been kept of all correspondence, have at least three communications been sent (including one by Special Delivery), and has a clear deadline been included?
• How high a profile has the artist?
• Does the work contain risky content (e.g. others’ trade marks, images of well-known personalities, etc)?
• How high profile is the intended use? For example a ‘thumbnail’ on a website should be easy to remove if a previously-unknown copyright holder emerged, whereas a full-page colour reproduction on the cover of a glossy catalogue with a 10,000 print-run would present considerably more problems.
• How long is the intended use, e.g. for how long will a work be posted on a website?
• How high resolution will the image be reproduced at?
• How long has the artist been dead, e.g. someone who died 68 years ago might pose less risk than someone who died only five years ago?
• Is the work subject to ‘revived’ copyright? This applies in the UK to work that fell out of copyright under the previous 50-year rule but returned into copyright following the extension to 70 years’ duration in 1996: if the work was previously published under the old 50-year rule, one view is that it constitutes a lower risk that one that has never come out of copyright.
• Does the organiser have a policy for dealing with copyright issues?

The following disclaimer might be used in the case of unresolved copyright:

“Every effort has been made to obtain permission from the relevant copyright holders and to ensure that all credits are correct. We have acted in good faith and on the best information available to us at the time of publication. We apologise for any errors, which will be corrected in future editions if notification is given to the publisher in writing.”

The risk of a claim from a previously-unknown copyright holder may be reduced if the organiser can demonstrate that it polices copyright in a proactive way and actively pursues potential infringements. If the organiser can demonstrate that reproductions have been released in a carefully considered way with adequate protections in place, then this may go some way to appeasing the previously-unknown copyright holder. Again, seek specialist advice.

If any new photographs are required, suitable contractual arrangements will need to be made with photographers, to ensure that there is no doubt as to the ownership of the copyright.

If the photographer is an employee of the lender, then the lender will automatically own the copyright, and nothing more need be done. If not, the copyright should normally be assigned by the photographer to the lender or owner as agreed. The sample copyright assignment can be adapted as necessary.

If reproductions are to be published by a publisher as a third party, a publishing contract will be needed, including suitable wording on copyright.

The following is an example of possible clauses to be inserted into an agreement between lender and organiser:

1. Name of Organiser.

2. Name of Exhibit.

3. Name of Lender.

4. Name(s) of the Copyright Owner(s).

5. Subject to the Organiser obtaining the written approval of the Copyright Owner(s), the Organiser may reproduce the Exhibit and any photographs supplied by the Lender for the following purposes (the ‘permitted reproductions’):
(a) illustration in exhibition catalogue;
(b) reproduction for all press and publicity purposes (including on websites, in e-bulletins and on social media);
(c) reproduction in the following material: posters, prints, postcards, other merchandise;
(d) reviews of the Exhibition;
(e) archive, providing a record of the exhibition and consisting of a non-lending and non-income-generating reference and research resource;
(f) for all educational purposes, for example education leaflets, teachers’ packs, slides shown in public lectures, themed education projects;
(g) any other reasonable purpose in connection with the Exhibition, the Lender, the Organiser or the Artist.

6. The Organiser will pay the Lender the following fees/royalties for permission to reproduce the Exhibit as above [here state fees/royalties, how calculated, when payable, etc.].

7. The Lender will supply on loan to the Organiser the following photographs [here state which photographs, identified by names of photographers, image names / number etc.], which the Organiser will use only for producing the permitted reproduction(s), and the Organiser will ensure that all photographs or digital files are returned to the Lender as soon as practicable after the end of the exhibition.
and/or
The Organiser may arrange for the Exhibit to be photographed in connection with the permitted reproduction(s), provided that the Organiser ensures that the copyright in any new photographs is owned by the Lender.

8. The Organiser will ensure that any permitted reproduction(s) are of good quality, and will supply the Lender with a copy for approval prior to reproduction.

9. The Lender warrants to the Organiser that, unless otherwise specified in clause 4 above, the Lender is the owner of the copyright in the Exhibit and any photographs to be supplied by the Lender, or is otherwise authorised to grant the right to make the permitted reproductions.

10. The Lender agrees that the Exhibit may/may not be photographed by the public using existing ambient lighting.

11. The Organiser will ensure that all permitted reproductions will bear the copyright notice/credit as follows [here state wording of credit].

12. The Lender hereby notifies the Organiser that the artist/creator of the Exhibit has asserted his/her right to be identified as such whenever the Exhibit is exhibited in public or whenever the permitted reproductions are published. The Organiser agrees to bring this assertion to the attention of the Venues.

Sample form for use when the lender is not the copyright owner. This form can be adapted for use when the exhibit or photograph is copyright-expired but the owner’s consent is needed:

I the undersigned confirm that I am the owner of the copyright in the Copyright Work specified below (‘the Work’) and HEREBY CONSENT to the following reproduction of the Work:

1. The Copyright Work.

2. Permitted reproduction.

3. Manner of reproduction.

4. Number of copies.

5. Territory.

6. Duration.

7. Credits.

8. Fees or royalties.

9. Description of any photographs to be supplied.

10. Special terms (if any).

The above is to be governed by English (or Scottish) laws.

The above consents are given to you personally and may not be assigned or transferred by you to any other person without my written approval.

It is a condition of the above consent that the copyright in any photographs or other permitted reproductions shall belong to me absolutely.

Please confirm your acceptance of the above terms by signing and returning the enclosed copy.

The organiser should sign a copy and return it to the copyright owner.

Sample of a copyright assignment form, e.g. for use when new photographs are taken:

In consideration for the fee(s) to be paid to me for the Work summarised in the Schedule below, I the undersigned hereby irrevocably assign to the Assignee the copyright (including where relevant the present grant of future copyright) and all rights derived therefrom in the Work absolutely throughout the universe and in all languages for the full period of the copyright and all renewals, revivals and extensions thereof.

I warrant and confirm that I am the owner of the copyright in the Work, that the Work is original to me and has not previously been published in this exact form; and that I have not made any assignment or purported assignment to any third party of any of the rights hereby assigned.

I hereby assert my moral right to be identified as the creator of the Work whenever the Work is published in any catalogue, publicity material, postcard or other material:

The Work:………………………………………………………….
Schedule: [the photograph, not the Work]????….
Assignee: [name & address]…………………………………
Signed: ?…………………………………………………………
Name:???……………………………………………………..
Address:??……………………………………………………..
Date: ????????………………………………………

Copyright & Reproduction – permitted reproductions

Examples of possible clauses for permitted reproductions, to be inserted into a hire agreement between organiser and venue or subsequent advance information:

1. Name of Venue.

2. Name of Organiser.

3. Name of Exhibit.

4. Name of Exhibition.

5. The Venue may use any photographs of the Exhibit supplied by the Organiser for the following purposes (the ‘permitted reproductions’):
(a) reproduction for all press and publicity purposes (including on websites, in e-bulletins and in social media);
(b) reproduction in the following material: posters, prints, postcards, other merchandise;
(c) reviews of the Exhibition;
(d) archive providing a record of the exhibition and consisting of a non-lending and non-income-generating reference and research resource;
(e) for all educational purposes, e.g. education leaflets, teachers? packs, slides shown in public lectures, themed education projects;
(f) any other reasonable purpose in connection with the Exhibition, the Lender, the Organiser or the Artist.

6. The Venue will pay the Organiser or, at the Organiser’s request in writing, the Lender or Owner direct the following fees/royalties (if any) for permission to reproduce the Exhibit (here state fees/royalties, how calculated, when payable, etc).

7. The Organiser will supply on loan to the Venue the following photographs (here state which photographs, identified by names of photographers, negative numbers, etc), which the Venue will use only for producing the permitted reproduction(s), and the Venue will ensure that all photographs are returned to the Organiser as soon as practicable after the end of the showing.

and/or

The Venue may arrange for the Exhibit to be photographed in connection with the permitted reproduction(s), provided that the Venue ensures that the copyright in any new photograph is owned by the Lender.

8. The Organiser warrants to the Venue that the Organiser is authorised to grant the reproduction rights as above.

9. The Organiser agrees that the Exhibit may/may not be photographed by the public using existing ambient lighting.

10. The Venue will ensure that all permitted reproductions will bear the copyright notice/credit as follows [here state wording of credit].

11. The Organiser hereby notifies the Venue that the artist/creator of the Exhibit has asserted his/her right to be identified as such whenever the Exhibit is exhibited in public or whenever the permitted reproductions are published.

Although EU copyright law has been harmonised to an extent, there are still differences between the jurisdictions. United States copyright law can be a challenging area, especially regarding the differences between US ‘fair use’ and UK ‘fair dealing’ and also ‘model release’, ‘property release’ and ‘personality rights’ issues. Jurisdiction of contracts should always be an essential clause within the contract. Consult a lawyer in case of difficulty. The following websites may be useful:

• www.ipo.gov.uk
• www.copyrighthub.co.uk
• www.copyright.gov
• www.ifrro.org

There may be an expectation by visitors that they can take photographs within exhibitions. Many venues allow photography within gallery spaces and of collection works, whereas many ask visitors NOT to take photographs within exhibition spaces. This may be not only for copyright reasons, but also for security, visitor enjoyment, access or contractual reasons. For example, a lender of a copyright-expired artwork may contractually oblige the borrower NOT to allow photography.

Such photography – if it were to happen, would be a breach not of copyright law but of the contract. Venues should therefore think extremely carefully about whether to allow photography in exhibition spaces, ensuring that very clear contracts govern such possible activity. If photography IS contractually agreed, it is suggested that clear signage conveys that, ‘Photography is allowed for personal, non-commercial purposes only. It is the visitor’s responsibility to ensure no copyright is infringed. The use of flash and tripods is prohibited.’

Author: Bernard Horrocks (2015)