In general, reproducing an artistic work without the permission of the copyright owner amounts to an infringement of copyright. There are, however, some exceptions to this under UK law.
Introduction
An exception doesn’t mean that
copyright does not exist in an artistic work - it simply means that under certain circumstances, a particular use will be permitted by law and copyright won’t be infringed. As such, the exceptions should not interfere with the creator’s own interests in the artistic work and how they want to use it.
The Copyright, Designs and Patents Act 1988 (CDPA) contains the UK’s legal framework for copyright, including the exceptions. In 2014 it was updated as part of the Government’s efforts to modernise copyright law.
Fair dealing exceptions
Some of the most common exceptions that apply to artistic works are subject to the condition of
‘fair dealing’. For the exception to apply, the way the artistic work is used must be considered fair.
The term ‘fair dealing’ is not defined in legislation, but several factors may be taken into consideration, such as the amount taken (this could include a small but significant part of the artistic work), how the artistic work has been used and if the artistic work has previously been published.
The UK concept of ‘fair dealing’ is not to be confused with the US term ‘fair use’ which is much wider. You can read more about these two concepts
here, and in our
factsheet which covers the fair dealing concept in more detail.
In all the fair dealing exceptions, the artistic work must be used for a specific purpose. We have outlined these in more detail below:
Criticism and review
This exception may apply when an artistic work is reproduced for the purposes of criticism and review, provided that the artistic work is already available to the public, for instance, it has been publicly exhibited. The artist’s name and the title or a description of the artistic work must accompany the use for the exception to apply, unless it is not possible. The law refers to this as ‘sufficient acknowledgement’.
Quotation
The exception for quotation was introduced in 2014 and was developed with literary and musical works in mind, where a quotation could amount to an excerpt on a book cover for instance. The exception applies to works that are already publicly available and where only a limited amount is used for the quotation. The law doesn’t explain how a ‘limited amount’ is to be interpreted in relation to an artistic work, however. For this exception to apply the quotation must be accompanied by sufficient acknowledgement.
Reporting current events
This exception can apply when an artistic work has been reproduced, whether in print, broadcast or online, for the specific purpose of reporting on events of national or political importance. An event is ‘current’ if it deals with a contemporary issue. Sufficient acknowledgment of the artist is generally required unless the artistic work was used in a broadcast. The exception does not apply to photographs.
Parody, caricature and pastiche
The exception concerning parody, caricature and pastiche was introduced in the UK in 2014. The legislation does not define any of the terms so they must be understood in relation to their dictionary definition. As this exception is relatively new, the parameters of these terms are still evolving under UK law. Pastiche can include an artistic work consisting of a combination or selection of other works. Caricature generally portrays the subject of the caricature in an exaggerated form.
Research and private study for non-commercial research
This exception covers research and private study for non-commercial ends only. Under this exception, copies of an artistic work can only be made under very limited circumstances. It would not cover a situation where someone intends to publish an image of an artistic work as part of their research or if their research will lead to the artistic work being distributed to other people, for example if it is distributed among other students in a school or university. For the purposes of research, the artist must be sufficiently acknowledged for the exception to apply.
Preservation or replacement copies
Libraries, archives and museums can use this exception for the purpose of conserving an artistic work in their permanent collection, so long as it is not available for public loan. For example, if an artistic work has been damaged or a part is missing, a cultural institution can create a copy from an item in their permanent collection in order to preserve the original. If the artistic work is one of multiple copies and it is possible to obtain another copy, the exception would not apply.
Educational uses for instruction and examination
Educational establishments have licensing agreements with organisations such as the
Copyright Licensing Agency and the
Educational Recording Agency which allow teachers to make copies of artistic works in books, journals and broadcasts. Where an artistic work is not covered by a licence, the educational exception may apply.
The exception applies to both teachers and students within a school, university or further education college where a teacher is illustrating a point or providing instruction to a student, for example using materials in handouts or slides. The exception also applies where an artistic work is used in an exam question. The artistic work must be sufficiently acknowledged in any of these uses. The use of an artistic work is not covered by this exception if it is being used for commercial purposes.
Text or data mining for non-commercial research
This exception may seem more applicable to books but it does also cover artistic works, for example an illustration in a medical journal. It allows researchers, both individuals and research organisations, to make copies of artistic works to analyse them using computer programmes where the research is not for commercial benefit. The technique generally involves mass copying of electronic information and is used in many fields such as scientific research. The researcher must have the legal right to access the artistic work, for instance via a subscription. Sufficient acknowledgement of the artist is also a condition of the exception.
Other exceptions relevant to artistic works
Incidental inclusion
An artistic work might appear in the background of an image, or in a broadcast or a film. Where the use of the artistic work is incidental - in other words, unplanned - this is covered by an exception. What is considered ‘incidental’ does not depend how big or small the artistic work appears, or if it is in the background or foreground of the image. What is important is whether the artistic work is integral to the image, broadcast or film. If the use of the artistic work is integral, it will not be incidental.
Certain artistic works on public display
Some artistic works can be photographed, filmed or broadcast when they are permanently located in a public place. This is limited to sculptural works, buildings and works of artistic craftsmanship. It would not include for instance a mural or any type of painting in a public space. The artistic work must also be permanently situated in the public space. A sculpture temporarily on display in a park will not be covered by this exception, for example.
If a person’s photograph, film or broadcast of an artistic work is covered by this exception, they can display it to the public, including online. This exception is explored in more detail in our
factsheet on sculpture and works of artistic craftsmanship on permanent public display.
Advertising the sale of artistic works
When an artistic work is offered for sale, an image of the work can be used to advertise the sale in advance. The artistic work cannot be used, however, to advertise something else - such as the sale of another artist’s work - or the sales event itself. To be covered by the exception, the advertisement should contain clear and precise details such as the location and time of the sale.
If an artistic work is used on the front cover of a sales brochure or catalogue it should also contain the sales detail. Cropping, overprinting or manipulation is likely to distract from the fact the work is for sale and the exception may therefore no longer apply. Additionally, cropping and manipulation of an artistic work could amount to an infringement of the artist’s moral rights, namely the right to object to derogatory treatment of their work where it affects their reputation. This is explained in our
moral rights factsheet.
The exception no longer applies when the artistic work is sold, so if the advertisement is reproduced or made public after the sale, the exception can’t be relied upon. This exception is specific to the UK and may not exist in other countries. If a sales advert is distributed outside the UK, permission may need to be sought from the artist to use the artistic work in an advert for sale.
Disclaimer: This factsheet is offered as a general guide to the issues surrounding copyright in this area. It does not represent an exhaustive account. It is not intended to offer legal advice and should not be relied upon as such. We strongly recommend you seek specialist advice for any specific circumstances.