Article by Arts Law Solicitor, Anika Valenti, and Arts Law Intern, Jillian Britton.
Published in Mosaic Association of Australia and New Zealand National emag – volume 11 August 2015
Copyright in a Mosaic
The first thing to know is that mosaics can be protected under Australian copyright law as artistic works. Copyright protection attaches to a work once it’s put into material form (that is written down or recorded), there is no registration requirement and lasts for the life of the artist + 70 years. Exclusive rights attach to the artwork created including the right to reproduce, communicate to the public and publish that work.
If anyone exercises the exclusive rights of a copyright owner without permission, they will infringe copyright.
‘But I’ve only copied the idea!’ Copyright protects the expression of an idea, not the idea or style or technique itself. It can be difficult to assess where an idea ends and the expression begins. For example, the technique of dot painting as used by Aboriginal artists isn’t protected by copyright (although the dot paintings themselves are) despite cultural issues with replicating this technique.
Assigning and Licencing Copyright
Copyright is an economic commodity, allowing artists to profit from their creative practices through agreements with third parties wanting either an assignment (transfer) of, or a licence (limited permission ) to use, the right to reproduce the artist’s work. Arts Law has an array of sample agreements to help you in any licensing situation.
‘But I didn’t give permission!’ Infringement can and does occur, especially online. It’s important to protect your work e.g. using the © symbol along with your name and the year of creation to put people on notice that you own copyright. Generally, licences are negotiated BEFORE the rights are exercised; however Susan Schmidt discovered how a licence negotiated in hindsight resolved reproduction of her artwork without permission.
However, artists should be aware that under a contract of employment the employer will own copyright in the work they create.
Moral rights provide the artist with certain personal protections in relation to their work including:
- right of integrity – the ability to prevent ‘derogatory treatment’ of their work;
- right of attribution – the right to be named as the creator; and
- right against false attribution – the right to stop someone else being named the creator.
Moral rights can’t be assigned or licenced and protect the artist even if they assign their copyright interest to someone else. Moral rights last for the life of the artist + 70 years.
The story of Anna Minardo’s mosaic shows how relocation of a work may interfere with the artist’s moral right of integrity.
When will my mosaic infringe someone else’s work?
Artist’s question the extent their artwork can be inspired or copied from someone else’s work. Copying a ‘substantial part’ of someone else’s work to create your own will amount to infringement unless copyright has expired or an exception to infringement applies.
‘But I only took a small part!’ It’s incorrect to think that you can copy 10% or less of someone else’s work and not infringe copyright; if a ‘substantial part’ of an original work is used without permission there will be infringement.
So what is a substantial part? This is a qualitative not a quantitative assessment, meaning a substantial part may be very small. If what has been used is an important, essential or distinctive feature of the original work it will amount to a substantial part.
Now if copyright has expired there is no infringement if you copy the work. But if copyright protection remains and you incorporate a substantial part of an original work in your own, it’s likely you will infringe copyright.
‘But it’s a painting and mine is a mosaic!’ When determining infringement it makes no difference if your mosaic is in a different medium to the original work, for example, if the original work is 2D and your mosaic is 3D or vice versa.
Defences to Copyright Infringement
There are exceptions to copyright infringement in limited circumstances.
‘My mosaic is in a public place!’ Sculptures or Works of Artistic Craftsmanship – which may include mosaics – that are permanently displayed in a public place may be reproduced without the permission of the copyright owner. A reproduction includes making a painting, drawing, engraving or photograph of the work, or including the work in a film or broadcast. Artists should be aware of this exception when undertaking public commissions.
Unlike the US ‘Fair Use’ exception, the Australian ‘Fair Dealing’ exceptions for research or study, criticism or review and parody or satire are narrower and unlikely to apply to the creation of your mosaic.
‘But it’s only for personal or non-commercial use!’ There is no personal or non-commercial use exception to copyright infringement for artistic works. This means that if you copy a substantial part of an existing work without permission, even if you only intend your work for personal use, an infringement will have occurred.
Importantly, it’s not an excuse if you didn’t know your work infringed or you couldn’t find the copyright owner. Similar to a speeding fine, you are still liable.
‘It’s on the internet so it’s fine to copy’ Publication of a work on the internet does not remove copyright protection. If you want to copy a picture found on the internet you still need permission from the copyright owner!
If you are taking inspiration from the internet, consider licensing work through an image library e.g. Getty Images or find royalty-free or Creative Commons licensable works.
If you’re unsure whether you’re infringing someone else’s rights, you should contact Arts Law for advice before going ahead and creating a work that can’t be exploited. For further resources, information sheets and sample agreements check out Arts Law’s Info Hub.