Every quarter, our Legal team answers your questions about copyright. This month they introduce copyright infringement. How can you tell if your work has been infringed and what can you do if this happens?
What is an infringement?
Copyright in an artist’s work is infringed when someone carries out one of their ‘exclusive rights’ without their permission and an exception to copyright does not apply.
As the copyright owner, your ‘exclusive rights’ are:
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The right to communicate your work and issue copies of your work to members of the public
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The right to rent or lend (‘license’) your work and to adapt it
As the copyright owner, it is up to you whether you allow or prohibit anyone else from doing any of the above with your artwork.
What are the exceptions?
There are exceptions to copyright that allow someone to use your copyright-protected work in limited situations for certain uses. For example, for the purpose of advertising the sale of your artwork, or when photographing or filming certain works on permanent public display, such as sculptures.
A number of these exceptions must pass the ‘fair dealing’ test, such as the exceptions for research, reporting current events, or criticism and review of an artwork. This means that the way in which the work is used must meet certain criteria or else it is an infringement. Read more.
How can I tell if my work has been infringed?
An infringement can occur when someone directly copies one of your works in its entirety or if they use substantial elements of your work without your permission.
What is determined by ‘substantial’ is not necessarily about proportion or size. A small but distinct element of your work can be copied and this could still amount to an infringement.
In previous UK court cases – for example, where an artist has been accused of infringing another artist’s work, or where a company has used parts of an artist’s work on a product they are selling – the assessment for copyright infringement has been made by looking at the similarities, rather than differences.
For copyright infringement to be determined there must be a connection between the infringing work and the original work – the infringement has to be derived from the original. There are ways of establishing the connection by looking at surrounding circumstances, such as availability. For example, the original work could be easily accessed online or in public exhibitions. Additionally, any contact with the infringing party such as discussions to use the work, or even engagement on social media, will help establish that they were aware of your work before making the infringing version.
The test for infringement is done on a case by case basis. If you claim your work has been infringed, you will have to prove this. Once it has been established, it will be for the person potentially infringing the work to prove they have a defence, for example that their work was their independent creation. Copyright infringement is known as a ‘strict liability’ offence, which means that it is irrelevant whether or not the infringer knew or wanted to infringe copyright.
Can ideas be infringed?
Copyright does not protect ideas but instead expressions of ideas. An ‘idea’ includes the thought that prompted the work, such as the subject matter, or the style in which it was created. So, an infringement is unlikely to take place when two artists depict someone sitting on a chair or if two artists produce an abstract painting. In these instances, only a direct copy of the work would amount to an infringement, but a depiction of the same idea would not.
This concept is evolving, however. Recent cases have looked at the idea behind an artwork more closely to establish if an infringement has taken place, especially where the idea is very original.
What should I do if my copyright has been infringed?
If you think your work has been infringed by another artist or designer, or if a company has used your work without your permission, the first step is to gather evidence of what you believe is the infringement. It is also useful to keep records of your work should you need to rely on them.
We also advise you seek independent legal advice. There are a number of free or low-cost legal services out there, including the UK government’s IP Pro Bono service. There is also the Intellectual Property Enterprise Court, which specialises in copyright claims making it easier and more cost-effective for individuals and small businesses to settle disputes.
See our Useful links page for further recommendations.
If your work has appeared online without your permission, you can issue a ‘notice and takedown’ request. Most websites have a mechanism for this, even outside of America where they are required to by law. This mechanism is also provided by online payment services such as PayPal – so use it if you see someone selling products online which infringe your work.
If you feel comfortable that you have a valid claim you may also contact the infringer directly and ask them to discontinue or remove the infringement. This may result in them defending their actions which you will then have to consider.
See our Exceptions factsheet for occasions that permit the use of your work.
Remedies you can seek include a retrospective licence, an injunction to stop the perpetrator using the work or ‘delivery up’ of copies made – which means all copies of the infringing work are returned to you and taken off the market.
There is a criminal liability for infringement where the infringer is acting in the course of business and knows that the works they are handling are infringements.
Support for DACS members
If you are a Copyright Licensing member, we can provide free legal support for infringements and reach a suitable settlement on your behalf.
Copyright Licensing and Artist’s Resale Right members can also use our Copyright Advice Service for help identifying and dealing with an infringement.
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Image: Marilyn Diptych, 1962, Andy Warhol © The Andy Warhol Foundation for the Visual Arts, Inc./ DACS 2016. License this image.