Copyright – Artistic Works

iStock 1054253736

By Charles Beresford

I was recently asked to provide advice to a client who wanted to reproduce a collection of old plans which he had found in an antique shop in a book he was wanting to publish.

He sought my advice as to whether he would be breaching copyright by publishing those plans in his book.

My research led me to revisit the law of copyright.  My research took me back to my student days.  Among the few cases which I can recall from those happy days at law school (many years ago now) was the case in which pop singer Adam Ant tried to claim copyright over his distinctive facial paint.  Because of that case, I have carried, for many years, in the “useless information” compartment of my brain, Adam Ant’s real name – Stuart Leslie Goddard.  Unfortunately, at various quiz nights which I have attended over the years, the question has never been asked as to what is the real name of Adam Ant.  Most quiz masters settle upon asking about the real names of Elton John or David Bowie or Ringo Starr.  Whilst researching the law to provide the necessary advice for my client, the name Stuart Leslie Goddard temporarily escaped from the obscure information section of my brain.  Now that I have given the advice to my client, that name has returned to the “useless information” compartment of my brain, and, I dare say, the likelihood of it re-emerging, is remote, to say the least. 

I digress.  Getting back to my advice; it centred on the following principles. 

Basic Principles

  • Copyright is a proprietary right belonging to the owner or licensee of a “work”.
  • Copyright refers to the exclusive right held by the owner of the copyright to reproduce, publish or communicate a work.
  • The law of copyright in Australia is contained in the Copyright Act 1968.  That Act is a Commonwealth Act. 
  • Under Australian copyright law, protection has principally been given to the traditional classes of “works” ie. literary works, dramatic works, artistic works and musical works.
  • With respect to “artistic works”, in order for that work to be protected under copyright law, that work must:-
    • fall within the definition of “artistic works” as defined in the Copyright Act;
    • be “sufficiently substantial or complex”;
    • be produced in a “material form” and “published”;
    • be an original work; and
    • have a factor connecting the relevant work to this country.

Who is the owner of copyright? 

In simple terms, the creator of the artistic work (called the “author” in the Copyright Act) is the first owner of copyright in a work.  However, there are several exceptions to that basic rule which include the assignment of copyright by way of a contractual agreement.  Further, when a work is made by an author pursuant to the terms of his or her employment under a contract of service or apprenticeship, copyright in the work will belong to the employer.

Registration? 

Australian law does not require registration of copyright.  Copyright exists in a work when it is created, subject to the criteria expressed above. 

Copyright protects the expression of ideas, not the ideas themselves

Copyright protects the actual work of authors.  It is the work (ie. the form of expression used by the author) which is protected and not the underlying ideas or information which led to the creation of the work. 

Infringement of Copyright

It is an infringement of copyright for any person other than the copyright owner to do any of the things that a copyright owner is exclusively entitled to do in respect of a work, unless permission has been granted to perform such acts. 

The most common form of direct infringement of copyright is for a work to be reproduced in material form without the permission of the copyright owner. 

Duration of Copyright

For artistic works created after 1 May 1969 (the date on which the Copyright Act commenced), the basic rule is that copyright subsists in the work for the life of the author plus 70 years or where the author is unknown, copyright subsists for 70 years after the year when the artistic work was first made public.

However, care must be provided when giving advice on the duration of copyright in a work because the period in which copyright exists in a work depends upon the nature of the work in question and whether the work was created before or after the commencement of the Copyright Act. 

Remedies for Copyright Infringement

The main remedies available to a copyright owner for copyright infringement are:-

  • an injunction to restrain the publication of the work;
  • an award of damages; or
  • an account of profits. 

 If you would like advice on copyright issues, or if you would like to discuss the artistic merit of Adam Ant’s face paint, then please do not hesitate to contact Charles Beresford.