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Copyright Infringement
and "Fair Use"

​Basics for Art and Artists

This page covers:
  • what is copyright infringement? (UK and USA)
  • what is fair dealing? (UK) / fair use? (USA)
  • ​​what is the public domain?
  • BASICS: Official Perspectives on Copyright (in the USA and UK)
  • Other Perspectives on Copyright
If you receive a notification of copyright infringement via letter, email, phone call or similar, you should take time to understand the allegation and try to determine the validity of the claim. Do not ignore it.
​
Guidance - IP crime and enforcement for businesses
The aim of this page is to provide you with a quick scan outline of what copyright infringement, fair ealing / fair use and the public domain actually are.

PLUS some links to more in-depth articles and places where you can find out about these two concepts.

IMPORTANT NOTES:
  • There is no guarantee that the information on this page is completely up to date. 
  • This page provides you with a place to start to check out the law and what you can and cannot do - but ultimately your liability for your actions rests with you alone.
  • It does NOT cover legal jurisdictions outside the UK and USA where the rules might be different
​

COPYRIGHT INFRINGEMENT
​

Copyright infringements occurs when a person and/or organisation and/or publisher (online or in print)
ignores and/or breaches the rights of the person who originated the item and/or owns those rights
which enjoys copyright / trademark / patent protection in law 

- intentionally or otherwise.
​

It is outrageous that anyone can steal an artist’s work and get away with it. It is theft, as surely as reaching into someone’s pocket and taking their wallet is theft. 
Philip Pullman

What is copyright infringement - in the UK?
​

Copyright Matters are dealt with in the UK by the Government's Intellectual Property Office.
It's important to note that some offences are are treated as criminal offences and not just civil infringements.

(Intellectual Property) IP crime and infringement.
IP rights are infringed when a product, creation or invention protected by IP laws are exploited, copied or otherwise used without the permission or consent of the person who owns those rights or their representative. 

​It can range from using technology protected by a patent to selling counterfeit medicines/software, copying a film and making it available online to selling counterfeit goods including clothing, makeup, and DVDs. All these acts will constitute a civil infringement. However, in the case of trade marks, designs and copyright the act may also constitute a criminal offence if it’s conducted in the course of a business.
Guidance - IP crime and enforcement for businesses ​
Copyright is usually infringed when someone carries out any of the acts restricted by copyright without the rights holder permission, whether in respect of the whole or a substantial part of the work.

The author of a copyright work has the exclusive right to authorise or prohibit the following acts also known as economic rights: reproduction, distribution, rental and lending, public performance, communication to the public by electronic transmission including broadcasting, adaptation.
​
Authors also have moral rights which protect non-economic interests. This includes the right to attribution, the right to object to derogatory treatment of a work, the right to object to false attribution and the right to privacy of certain photographs and films.
Guidance - IP crime and enforcement for businesses ​
REFERENCE - GOV.UK Publications
  • Guidance - IP crime and enforcement for businesses (Updated 16 June 2020) - Contents
    1. IP rights infringement overview covering infringement of copyright / patent / design / trade mark​​​
    2. What to do if accused of infringing someone’s IP Rights
    3. Addressing IP infringement: affordable access to justice
    4. Risks for businesses
    5. How to report IP crime
  • Guidance - Intellectual property offences (Updated 1 October 2017) covers 
    • ​Copyright, Designs and Patent Act 1988
    • Registered Designs Act 1949
    • Video Recordings Act 2010
    • Fraud Act 2006
    • Consumer Protection from Unfair Trading Regulations 2008 
    • it summarises offences (criminal and civil) and highlights (amongst others)
      • Unauthorised use of a trade mark
      • Criminal liability for making or dealing with infringing articles.
      • Devices and services designed to circumvent technological measures
      • etc.
REFERENCE:
  • Intellectual property and your work | GOV.UK​
Copyright, patents, designs and trade marks are all types of intellectual property protection. ​
NOTE: Last updated 8th March 2021

What is copyright infringement - in the USA?
​

Some official definitions by the US Copyright Office
What is copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
Copyright.gov
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.
US Copyright Office 
You can find further official definitions in the section below on BASICS: Official Perspectives on Copyright (for the US and UK)

FAIR DEALING (UK) AND FAIR USE (USA)
​

Fair use is not defined in the same in the UK and the USA - and you need to be clear on which legal regime applies. The information below aims to highlight the key features and the differences between the two.
The US-based College Arts Association’s Code of Best Practice in Fair Use for the Visual Arts aims to help those working in visual art understand how they can use copyright-protected materials safely, without infringing copyright.
 
It addresses common situations where a curator, academic, writer, teacher or artist might want to reproduce an image of an artwork and outlines circumstances when the US doctrine of ‘fair use’ can be invoked, enabling the reproduction of a copyright-protected work without clearance from the copyright-owner.

Whilst the Code has some relevance in the UK, it references US copyright law. Differences in our legislation mean that certain reproductions of copyrighted artworks which are permitted in the US could conversely be treated as infringements in the UK, depending on the circumstances.
Fair use: copyright differences in the UK and US | DACS
Picture
Extract from "Fair use: copyright differences in the UK and US" | DACS (2015)

What is Fair Use - in the UK?
​

Fair use is a legal framework which provides guidance on:
  • how to make lawful use of or reproduce work
  • WITHOUT having to seek permission from the copyright owner(s) or creator(s)
  • OR infringing their interest.

​Fair dealing laws can apply to:
  • Written works
  • Dramatic works
  • Artistic works
  • Literary works
  • Typographical works
  • Musical works, although it does not cover the copyright for printed music

Fair dealing is governed by Sections 29 and 30 of the Copyright, Designs and Patents Act 1988.
The ‘fair dealing’ criteria will apply to uses of artistic works that are for the following purposes and which are explained in our general factsheet on copyright exceptions.
​
  • - For the purpose of criticism and review
  • - For the purpose of quotation
  • - For the purpose of reporting current events
  • - For the purpose of parody, caricature and pastiche
  • - For the purpose of research and private study for non-commercial research
  • - For the purpose of preservation or replacement copies
  • - For the purpose of educational uses for instruction and examination
  • - For the purpose of text or data mining for non-commercial research​
  • Fair Dealing | DACS
UK copyright law (Copyright, Designs and Patents Act 1988) defines a number of exceptions, in the form of permitted acts.
These allow you limited use of copyright works for specific purposes without the permission of the copyright owner. Most have conditions and are subject to a 'fair dealing' assessment.
Exceptions to UK Copyright law | University of Nottingham
Fair dealing for criticism, review or quotation is allowed for any type of copyright work.
​Exceptions to copyright | GOV.UK
REFERENCE (UK)
  • Guidance - Exceptions to copyright | GOV.UK (updated Jan 2021) Contents are as follows:
    • Overview
    • Non-commercial research and private study
    • Text and data mining for non-commercial research
    • Criticism, review and reporting current events
    • Teaching
    • Helping disabled people
    • Time-shifting
    • Parody, caricature and pastiche
    • Sufficient acknowledgement
    • Fair dealing
    • Technological protection measures
    • Further guidance
  • Exceptions to copyright: An Overview | GOV.UK (PDF) published 2014
  • Exceptions to copyright: Guidance for creators and copyright owners | GOV.UK (PDF) published 2014 - This leaflet is aimed at creators, copyright owners, and businesses that manage rights in copyright works. ​
  • Exceptions to copyright: Education and Teaching | GOV.UK (PDF) published 2014 - This leaflet sets out an overview of the changes to the copyright exceptions for education and teaching. This may be relevant to: • Individuals such as teachers and pupils, lecturers and students; • Educational establishments such as schools and universities; • Other providers of instruction such as museums and youth organisations. 
  • Exceptions to copyright: Guidance for consumers | GOV.UK (PDF) published 2014​
  • Fair Dealing | DACS (The Design and Artists Copyright Society)
  • Guidance on Copyright and Permissions | Society of Authors (PDF document) - The SoA is the UK trade union for all types of writers, illustrators and literary translators, at all stages of their careers. 
  • Fair Use Copyright Explained | British Library
  • Fair dealing in United Kingdom law  | Wikipedia
  • Exceptions to UK Copyright law | University of Nottingham

What is Fair Use - in the USA?
​

"Fair Use"
  • defines how copyrighted material can be used without permission or licence from the rights holder for the purposes of commentary or criticism.
  • the concept os based on free speech rights provided by the First Amendment to the United States Constitution. 
  • United States trademark law also incorporates a "fair use" defense.
The terms originated in the USA and the concept is sometimes referred to as "fair dealing" elsewhere.

BELOW you can find expert comment from authoritative sources about what is "fair use" and how it can be measured.
DEFINED "FAIR USES" ARE STRICTLY LIMITED
They are defined by four factors
 as follows:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Each of these factors need to be weighed in each case in order to determine whether a use qualifies as a fair use.

If the copyright holder disagrees with the "fair use" the matter may be resolved in court. There is a significant amount of case law which is relevant.
REFERENCE (USA)
NOLO is the source for much of what is quoted on the Stanford Copyright and Fair use site. 
Nolo began publishing do-it-yourself legal guides in 1971.


Articles on Using Copyrighted Work: Fair Use & Permissions
  • The 'Fair Use' Rule: When Use of Copyrighted Material is Acceptable
  • Fair Use: It's a Defense to Copyright Infringement
  • Fair Use: What is Transformative?
  • Fair Use: The Four Factors
  • The First Sale Doctrine
  • Using Works in the Public Domain: No Need to Get Permission 
  • Getting Permission to Publish: Ten Tips for Website Managers
  • How to Obtain Sample Clearance 
  • Determining the Length of Copyright Protection
  • Copyright: Libraries and Photocopy Machines
These are Approved Statements about Fair Use within an Educational Context
  • College Art Association’s ​
    • CAA’s Code of Best Practices in Fair Use for the Visual Arts
    • US Copyright: Fundamentals & Documents
    • Image Sources and Rights Clearance Agencies
    • Other Fair Use Guidelines, Practices, and Policies
    • Copyright Outside the United States
    • Legal Assistance
  • Visual Resources Association’s Statement on the Fair Use of Images for Teaching, Research and Study​


HOWEVER - a court decision has changed the definition in relation to transformation and has instead focused on !
See 
  • The Supreme Court’s Warhol Decision Just Changed the Future of Art | Art in America
 the Court shifted the consideration away from the artistic contribution of the new work, and focused instead on commercial concerns. By doing so, the Court’s Warhol decision will significantly limit the amount of borrowing from and building on previous works that artists can engage in.
......the Warhol who emerges in the majority opinion is a tame portraitist whose work is just not that different from the photographs on which it is based.
......one thing is clear: it is now far riskier for an artist to borrow from previous work.
  • The Supreme Court’s Warhol Decision Just Changed the Future of Art | Art in America

When does artistic freedom and appropriation become copyright infringement?

Art and Appropriation - when does artistic freedom become copyright infringement? from Artquest London on Vimeo.

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PUBLIC DOMAIN
​

What is the public domain?
​

Works in the public domain can be used without seeking anyone’s permission and without incurring a copyright fee. 
​Works in the public domain | DACS
If you think that something is in the public domain simply because it is on the Internet YOU ARE WRONG!

There are a lot of people who don't know much about copyright and the law who think that everything on the Internet is in the public domain - because it's on the Internet.  They are WRONG. This section covers what the public domain really is​

EXAMPLES
  • Posting a video to YouTube does NOT put it in the public domain
​
The phrase “public domain” refers to works that have effectively become public property and are no longer protected by copyright law. This occurs when the copyright in a work of art expires.
Works in the Public Domain | DACS
Where is the public domain?
The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.
Copyright.gov

REFERENCE (UK)
  • Works in the public domain | DACS - This factsheet covers the following:
    • How works in the public domain can be used
    • When works enter the public domain
    • Exceptions
    • How an artwork is reproduced might itself be copyrighted
    • Differences in international law
REFERENCE (USA)
​NOLO
  • Using Works in the Public Domain: No Need to Get Permission - You can use a work without the author's permission IF it's in the public domain - which is not the same as 'being on the internet'
Video by the US Copyright Office (below) - The public domain covers works not protected by copyright. Learn which works are in the public domain and how works become a part of it.
If you want to use a work in copyright (i.e. it's not now in the public domain) - you will need to licence the artwork or original work.
NEW Getting Permission: How to License & Clear Copyrighted Materials Online & Off (7th Edition)
by Richard Stim
How to get permission for content you want to use. This easy-to-use book shows you how to get the rights you need, with step-by-step instructions and more than 30 forms. Find out when permission is required, who to ask, and when (and how much) you can expect to pay. 
Picture
Rated on Amazon:
  • (6th edition) average of 4.5 out of 5 stars
  • (7th edition) average of 4.7 out of 5 stars

BUY THIS BOOK at:
AMAZON.COM: Getting Permission: How to License & Clear Copyrighted Materials Online & Off
AMAZON.CO.UK Getting Permission: How to License & Clear Copyrighted Materials Online & Off (6TH EDITION)
Getting Permission explains:
  • the copyright permission process
  • the public domain ("free" content)
  • how to figure out who owns a copyright
  • website permissions
  • the "fair use" rule
  • school-related permissions
  • license and merchandise agreements (including sample contracts and other forms)
  • and much more.
Ch. 4 Getting Permission to Use Artwork
  • Acquiring Rights to Artwork
  • Fine Art: Paintings, Sculptures, and Limited Editions
  • Graphic Art
  • Comics and Cartoons
  • Royalty-Free and Public Domain Clip Art
  • Searching for Art
  • Artwork Fees and Agreements
  • Artwork Resources
Forms include:
  • Artwork Permission Agreement
  • Agreement to Use Artwork in Motion Picture
  • Basic Permission to Use a Trademark in a Photograph or Artwork
  • Basic Copyright Assignment
  • Artwork Assignment Agreement
  • Work-Made-for-Hire Agreement
Series: Getting Permission
Paperback: 536 pages
Publisher: NOLO; Seventh edition (October 29, 2019)
Language: English
ISBN-10: 1413326897
ISBN-13: 978-1413326895
Product Dimensions: 7 x 1 x 9 inches
Shipping Weight: 1.8 pounds
Author: 
​Attorney Richard Stim specializes in small business, copyright, patents, and trademark issues at Nolo. He is the author of many books, including Patent, Copyright & Trademark: An Intellectual Property Desk Reference, and Profit From Your Idea. Stim regularly answers readers' intellectual property questions at Dear Rich: Nolo's Patent, Copyright & Trademark Blog.

BASICS: Official Perspectives on Copyright
​

Below you can find some links to the basics on copyright law and "fair use" - in the USA and UK
​

OFFICIAL​ - US Copyright Office
​

  • U.S. Copyright Office - Frequently Asked Questions - U.S. Copyright Office is an office of public record for copyright registration and deposit of copyright material.
  • Copyright Basics - US Copyright Office pdf file covers: • Works eligible for protection • Rights of copyright owners • Who can claim copyright • Duration of copyright
  • US Copyright Law (2016) (File is 2MB)
  • Intellectual property: Copyright, trademarks and patents | UK Copyright Service - Summary of intellectual property: Copyright, trademarks and patents explained.
  • U.S. Copyright Office Fair Use Index - The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use
  • Chapter 5: Copyright Infringement and Remedies (USA) | U.S. Copyright Office - Complete version of the U.S. Copyright Law, December 2011 - Chapter 5: Copyright Infringement and Remedies​

OFFICIAL​ - UK Intellectual Property Office
​

The UK Intellectual Property Office is the official voice on copyright law and guidelines in the UK.
  • Copyright | Gov.UK - Official government links to everything you need to know about copyright in UK law. 
  • Exceptions to Copyright - the UK version of stipulating what are the "fair use" exemptions. These INCLUDE:
  • Non-commercial research and private study
  • Text and data mining for non-commercial research
  • Criticism, review and reporting current events
  • Teaching
  • Helping disabled people
  • Time-shifting
  • Parody, caricature and pastiche
  • Certain permitted uses of orphan works
  • Sufficient acknowledgement
  • Fair dealing
  • Technological protection measures
  • Further guidance

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OTHER PERSPECTIVES
​

Stanford University Libraries

Stanford University Libraries have a very comprehensive resource relating to Copyright which you'll find referenced all over the place!
  • Stanford Copyright & Fair Use - Copyright Basics FAQ - These frequently asked questions explain what a copyright is and what exactly it protects. What types of creative work does copyright protect? ​

Lumen

Lumen (formerly known as Chilling Effects)  is a collaborative archive created by Wendy Seltzer and founded along with several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats.
[On November 2, 2015, Chilling Effects announced its renaming to Lumen}
  • Copyright and Fair Use | Lumen - includes lots of FAQS and the answers

​Copyright Alliance 

The Copyright Alliance - represents itself as the unified voice of the copyright community and represents the interests of authors, photographers, performers, artists, software developers, musicians, journalists, directors, songwriters, game designers and many other individual creators etc. 
  • Copyright Alliance - classroom resources - highlights the highlight the Internet Keep Safe Coalition (iKeepSafe)

UK Copyright Service

UK Copyright Service is an established copyright registration facility but it is NOT the official voice of government. Its data / statements are getting dated!
  • Copyright Law fact sheet P-09 : Understanding Fair Use - 
  • ​Designs and design rights | UK Copyright ServiceDesigns may be subject to three types of protection, copyright, unregistered design rights and may also be registered nationally as registered designs.

Brad Templeton

Brad Templeton was the founder of one of the very early .com companies and hence had to get to grips with copyright on the internet at an early stage. He brings a different perspective to FAQs about copyright and fair use.
  • 10 Big Myths about copyright explained | Brad TempletonBrad Templeton identifies 10 misconceptions about copyright rights
  • Responses to the Copyright Crisis | Brad TempletonBrad Templeton comments on some of the current problems connected to copyright...some system needs to be found, some way to assure that creators can make money from their efforts, the public's freedoms are not restricted and incentives can be provide

NOLO

Nolo began publishing do-it-yourself legal guides in 1971 and integrates some of the earliest legal sites on the internet
  • Copyright Law and Fair Use | NOLO - Guides for painters, writers, photographers and musicians​ ​

Others

  • What is Fair Use | Who is Hosting This - a guide to Copyright which includes a section on Fair Use

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Online Management of Artwork
​

The video below is about an artist who explains how her career has been affected by images on the internet and the problems associated with "right click download" - and the problems of using Instagram which strips out metadata.
She only uses digital watermarks, tracked by digimarc with banners saying copyright Kat Caverly - to prevent her images getting into Google Images.
GO TO HOME

​GO TO COPYRIGHT
  • Copyright and artists' rights
  • ​How to protect artwork online
  • How to do a reverse image search 
  • What to do about copyright infringement - for artists 
  • Global Conventions on Copyright
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ABOUT ART BUSINESS INFO. FOR ARTISTS  -  Please read "PLEASE NOTE"
This website aims to provide a compendium of resources about the art business for artists. 

It helps artists learn how to do better at being business-like, marketing and selling their art and looking after their financial security.
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