Use of an Artistic Image
An artist recently consulted Henry Lydiate, a barrister who has specialised in the law relating to the visual arts since he founded Artlaw Services in 1978, regarding the extent of the copyright she holds in her own sculpture. The query raises interesting issues for other artists whose work is situated in a public place or to which the public has access.
Her query relates to a monumental sculpture which she was commissioned to produce and site in 2000. The artist owns the sculpture and is responsible not only for the artistic creation but for all legal liability relating to it.
The work is highly visible from nearby public roads. It has been adopted as a regional icon. As a result, several local councils and the Regional Development Agency are either already using, or would like to use, images of the sculpture to promote regional projects.
The nub of the artist's query is:
"How much control do I have over the use of the [sculpture]? As I understand it, I have little control of who uses the image of a public artwork unless they challenge the integrity of the work or misuse the copyright of the individual photographers who may have taken an image.
However, they are obliged to acknowledge me, as the maker, and I find this is not always happening. Is this corruption of moral rights!
It appears almost impossible to control unless individuals approach me or I happen across things. And then can I do anything?
Ultimately, I am trying to work out whether local businesses using the image could contribute to the ongoing maintenance of the work. The maintenance of the work is a job in itself and one that has to be addressed financially! Could I charge a fee for the use of the image other than suggest they could contribute through sponsorship?
I am concerned about recent requests to use the [sculpture] for a logo for letterheads, by an organisation. I am not keen for the [sculpture] to be used as a logo. What do I do about this? Is this a trademark issue to stop the use of it in this way?
My last concern is around the use of the [sculpture] as a reproduction replica. If I do not wish to work with a company who has approached me, to create a small reproduction, then can they still so ahead? Again where do I stand – do I have sole rights in any reproduction?
If you could throw any light on these situations or suggest how to approach things I would be grateful. It seems important to act correctly by maintaining a level of professionalism and above all the integrity of the work."
Henry Lydiate's response is reproduced in full here:
"I fear that I have little positive for you.
One of the clearest exceptions to the basic copyright position (that no-one can reproduce your work without your express consent) relates to sculptures permanently situated in a public place or to which the public has access. Such works can be reproduced two dimensionally, even be filmed or broadcast/transmitted, without your consent; and such reproductions can also be used commercially with your consent.
In this case, all the two dimensional uses of your work that you describe do not need your consent and do not therefore breach your copyright in the work; because it is permanently situated in a public place (albeit on private land) where the public can see it (that was your intention) and can therefore make 2D versions of it.
Nor is anyone obliged to acknowledge you as the author of the work when they make and issue such reproductions, whether doing so on a commercial or non-commercial basis.
There is nothing you can do, legally, to prevent any of the activity I have described so far (except, of course, remove the work from public view, because you own it).
What does need your express prior consent is the making of any three dimensional reproduction (not just a replica) of your work. Therefore, in relation to the company that has approached you with such a proposition, they need your express prior consent to do so; and for that you are in a strong bargaining position to negotiate commercially beneficial coypright royalty fees, and to exercise strong control over the quality of such reproductions.
This latter quality control point stems from your statutory moral right to prevent (or legally object) to your work (or any 3D reproductions of it) being treated in a derogatory way (which could happen in the 3D reproduction process, which is why you should supervise it).
For these reasons, therefore, I'm afraid that the only control that I believe you can exercise is over the 3D reproduction of your work.
It is possible to register as a trade mark anything that is capable of being recorded graphically, and that would give you a legal right to control the use of your registered graphic image for as long as you maintained its registration. However, in the case of this work, you would have to take photographs - from every conceivable angle - and register each of them, together with a specification of which broad categories of commercial activity your registered image would apply to (and you would need to register in each such broad category). I do not believe that this would offer any reasonable prospect of legal control: partly because of the number of images and camera angles you would need; partly because of the number of broad commercial trade mark categories into which you would need to register each such image; and mainly because your work has been on public display for some time now, and many other people will have already made such images.
The problem you encounter, in your own way and on your own scale, is
precisely the same as the designers (and copyright owners) of The London Eye, or Gormley's Angel of the North - neither of them has any more right of control than you have, and can do nothing about the thousands of post-card and other 2D images made of their works. Why? Because you, like they, have given the image to the public by putting it permanently in a public place and (so the argument goes) it would be unreasonable (and practically impossible) to prevent the public from making 2D copies of it."
Copyright Henry Lydiate, 2005. All rights reserved.
Thanks also to the anonymous artist for kindly allowing the use of her original query.
