Copyright: Frequently Asked Questions

A film, a jingle, a prop, a poster. At the heart of the legal protection for all these things

is copyright which protects many types of creative work. This guide sets out the basics

so that you can take the proper steps and precautions in protecting your work.

This copyright guide is part of a series on a wide range of intellectual property issues,

such as branding and designs, which will help you understand the importance of

protecting your intellectual property and using it as part of your business strategy.

Designers should read this in conjunction with our Briffa Bites Registered Designs and

designprotect booklets, available from Briffa, Business Design Centre, Upper Street,

London N1OQH or www.briffa.com

THE BASICS

1. What is Copyright?

Copyright gives those who invest the skill and effort to create original work, the

right to prevent others copying them.

2. How do you get it?

Getting copyright protection is easy. All original works of an author, set down

in material form, have immediate copyright protection. “Original” doesn’t

mean that the work is new, fresh and innovative, but simply that it originated

from the author, that is, it is not copied from somebody else.

There is no copyright in ideas or concepts, but rather in the expression of

these ideas. For example, a general theme for a TV programme has no

copyright, but once it is made or written down, the recording of the TV show

itself, the images of fictional characters, the script and the music will all

benefit from protection by copyright.

It is important that what is created is put into material form. So if someone

creates a new song but doesn’t write it down or record a performance of it,

they have no copyright protection. Material form does not have to be writing

on paper, but can include saving it onto a disk or hard drive and recording it on

a tape or CD.

3. What does © mean?

So if you can obtain copyright protection just by writing something on paper

why does the following, for example © Jo Smyth 1970, appear on books,

drawings etc? The use of the copyright symbol does not create copyright

protection but it is important to put it on creative works, for three reasons: -

• It shows who the author is, when the work was created and that the

author is asserting their copyright

• It puts others on notice that they are not entitled to copy the work without

the author’s permission

• It is a statement that all legal formalities have been complied with to

allow copyright to exist in the work

Remember that copyright protection not only exists in drawings and music, but

also sculpture, fashion garments, three dimensional work and works generated

by computer programs. A building and a model of a building can also be the

subject of copyright.

It is often said, that to get copyright protection, you should post a copy of your

work to yourself in a sealed envelope. This does not give you copyright

protection, but rather it helps in proving the date the work was created.

There is no system for creative works to be registered in a central database.

If you can show that your work was created before someone else’s, this can

obviously be highly significant when you are trying to show that they could have

copied you. The best advice, is simply to always keep your rough drafts,

sketches, scribbles and notes which lead to the final work that you completed,

as all of these will be subject of copyright. Put the copyright symbol on these,

as they have their own copyright and they help to show the date of creation of

the final work.

4. What sort of things can you claim copyright in?

What works will qualify for copyright? Almost all of the elements of an

advertising campaign will be protected by copyright. From the initial

storyboards (protected by artistic and literary copyright), through to the finished

campaign featuring posters, filmed advertisements broadcast on the television

or radio with stage directions, scripts and stage directions. The following are

the main areas:

• Literary works, such as books, advertising copy and corporate literature.

This also includes computer programmes or anything expressed in writing.

However, there is no copyright in a single word standing on its own

• Dramatic works, the most typical of these being plays, but it can include

any dance and mime choreography and stage directions wherever these

forms are applied

• Musical works, this applies to any musical composition, including short

jingles. However, it does not include words or actions that may accompany

it

• Artistic works, original works of art with aesthetic elements will gain

protection, including graphics for posters

• Broadcasts, sound recordings (that is the actual CDs, LPs, minidisks,

tapes) films, cable programmes, typographical arrangements (that is the

type setting on a book, the way it looks on the page)

• Photographs

• Sculptures, collages, architectural works

• Computer generated works and databases

5. How long does it last?

Copyright protection lasts for up to 70 years from the date of the death of the

author, or in the case of sound recordings, films, broadcasts and cable

programmes, for 50 years running from the end of the year in which the work

was created.

6. What rights does the copyright owner have?

The owner of the copyright has the right to prevent others from doing any of

the following: -

· Copying the work

· Issuing copies of the work (otherwise known as the distribution rights)

· Renting or lending the work

· Performing, showing or playing the work to the public

· Broadcasting the work

· Including the work in a cable programme service

· Making an adaptation of the work

The above list of rights are known as the “restricted acts” as other people are

restricted from doing any of the above unless they have the permission of the

copyright owner. By doing a “restricted act” a person is said to infringe

copyright.

In the above list, copying includes storing a work on a computer and making a

three dimensional object from a two-dimensional drawing. A copyright owner

can take an action to prevent others from making a “substantial copy” of the

work. What constitutes a substantial copy is a matter for the courts, but one

general rule of thumb is that “if it is worth copying, it is worth protecting”.

7. Can the author of copyright and the owner be different?

It can be the case that the author of the copyright may not ultimately be the

owner of the copyright. For example, employers will automatically own the

copyright of all work that employees create during the course of their

employment. While this occurs automatically due to the law, it is normally

good practice for employers, in their contracts of employment, to have

provisions setting out this legal rule.

Also, the author can transfer his copyright by agreement for a set fee or in

return for a royalty payment. This will happen for example with a musician,

who will assign the copyright in their songs to a music publisher who then

seeks recordings and other exploitations of their work. This type of agreement

must be in writing to be effective. Alternatively, an owner of copyright may just

license someone else to use their work rather than selling it to them outright.

8. What are moral rights?

Moral rights are a special set of rights, which belong exclusively to authors of

literary, dramatic, musical or artistic works, and to the directors of a film. They

are designed to protect the artistic sensibilities of such authors. They do not

apply to works created during the course of employment. Moral rights cannot

be transferred but they can be waived and authors are usually requested to do

so. Moral rights give the author and director: -

• The right to be identified as the author (as long as the author or director

asserts their rights)

• The right to prevent or object to the derogatory treatment of their work

There are also moral rights for all individuals, not just authors or directors,

which are:

• The right not to have literary, dramatic, musical or artistic works falsely

attributed to them

• The right of privacy in photographs which they commission for private or

domestic purposes e.g. wedding photographs

9. What happens if I put my work on the Internet?

The laws of copyright apply equally to works on the Internet as they do in the

off-line environment. As a result, it is an infringement of copyright to place a

book, graphics or song on the Internet without the owner’s consent. There is

always a certain amount of risk involved in placing your work in an environment

that facilitates copying. However, by marking your work with proper notices

and by regular surveillance of your competitors, the risk of loss due to

infringement should be minimal.

Various aspects of a website will be protected by copyright. Firstly, there is

copyright in the “look and feel” of the website, that is the artistic aspects of

the website, or otherwise known as the “front end”. The copyright in the front

end is an amalgam of the various copyrights in the text, drawings, video clips

and music, which makes up the whole website. There will also be copyright in

the software, which powers and operates the website, known as the “back

end”. It is normally the case, in website commission agreements, that the

commissioner will own the front end, however the software which operates the

back aspect of it will belong to the software developer, who will license it out

to the commissioner.

10. What do I do if someone steals my work?

If you think your work is being copied you should write to the infringer and

request that they stop their activity. You should also seek specialist legal

advice if you feel that you have suffered losses as a result and legal

proceedings may also be an option.

11 Will there be protection in other countries as well?

Copyright is protected abroad under the international system called the Berne

Convention. Each country, which subscribes to the Berne Convention

(currently just under 150 countries of the world), agrees to treat works coming

from other member countries of the Berne Convention system as if they were

originating in their home country. Therefore, an English textbook being sold in

Germany would be protected in Germany, as if the work had originated in

Germany.

ENTRIES TO THE D&AD STUDENT AWARDS

Many colleges and universities require that students agree to assign the

copyright in work they create on their courses. Most design agencies and

studios have similar arrangements with their designers, and it requires a great

degree of bargaining power to arrive at an arrangement whereby the designer

retains the rights in his or her work. It is important for students, to know

whether their universities own the copyright in their work, particularly when

submitting work for competitions such as the D&AD Student Awards or when

displaying their work publicly at a show or exhibition.

Students who wish to submit work originally created for the purposes of their

course into the D&AD Student Awards should ensure they have either retained

ownership of the copyright in the work or they should obtain written consent to

use the work from the copyright owner, likely to be the college or university.

Students should discuss this with a course tutor in order to find out who owns

the work.

This is not to be confused with the copyright provisions to be found in the

application form and terms and conditions of entry. These provisions make it a

condition of work entered for consideration for a D&AD Student Award must

not infringe the copyright of any other person. They do not directly relate to the

copyright in the work entered itself.

The terms and conditions for submitting work for the D&AD Student Awards

clearly state that the D&AD and the sponsors of the D&AD Student Awards are

entitled to use the work submitted in order to promote the awards and to

promote the sponsors’ involvement. The students will not be paid for this, but

it could prove to be a valuable means for students to get their work noticed.

Similarly, these conditions also state that in the event a sponsor wishes to

develop or use any student’s work entered into the Awards, D&AD will actively

encourage communication between the sponsor and the student to ensure the

interests of both parties are protected. If you think a piece of work entered into

the Awards has been used or copied without your knowing, you should consult

your tutor and then contact D&AD (see point 10 above).

WHAT CAN BRIFFA DO FOR ME?

Briffa can provide you with personalised, expert advice and assistance with the

protection and maintenance of your work. We can help to devise a strategy for

maximising the exposure of your work, while continuing to maintain the

integrity of your work in the marketplace. If you require further information

please contact any one of the Briffa team. We can:

• Draft commissioning agreements for all ranges of industry, including

website development, fashion designers, artists, writers, and musicians

• Advise on all aspects relating to collective rights, that is, obtaining

licences from the PRS, MCPS, PAMRA and other licensing agencies

• Enforcing copyright from the first “cease and desist letter” all the way up

to full High Court proceedings

• Protect your copyright by conducting copyright audits, review of documents

and procedures and employment contracts

• Maximising your copyright by licences and assignments

• Advise on the complex copyright issues involved in a wide range of

specialist copyright areas including music, film, publishing, multi-media,

interactive television and broadcasting