Copyright in artistic works – Australian law

What is an artistic work?

• We commonly think of an artistic work as a painting or sculpture, however an artistic work may take various other forms.  Artistic works are protected by various statutory rights pursuant to section 32 of the Copyright Act 1968 (Cth)(Act).  Some examples provided by this section include:

• paintings and drawings;
• sculptures;
• craft work;
• architectural plans and buildings; and
• photographs; and maps and plans.

Section 31 of the Act provides that the copyright owner (Owner) has the exclusive right to reproduce, publish and communicate to the public.  Copyright subsists from the time an artistic work is first reduced to writing or recorded in some way pursuant to section 22(1).

Who owns the copyright in an artistic work?

The creator of the artistic work (Author) is the first Owner of copyright pursuant to section 35(2) of the Act.  There is no general definition of an Author under the Act but cases such as Donoghue v Allied Newspaper Ltd [1938] Ch 106 have interpreted an Author as the person who created the work by putting it into a form that is protected by copyright.  Exceptions to this include:

• employees – if the work is created as part of their employment, then the employer will usually own copyright;
• commissioned works – it is possible for a person to own copyright for works created by someone else where the creation of those works are commissioned by them;
• and governmental works – if works are created for the Government, the Government will generally be the copyright owner.

Copyright continues to subsist for seventy (70) years after the death of the Author as provided by section 33 of the Act.

What happens when the Owner sells the work?

Ownership of copyright is separate from ownership of the physical work itself.  This means that unless there is a written agreement to the contrary, copyright will not transfer from the Owner to the purchaser if the work is sold.  The fact that the purchaser bought the work does not mean they purchased the copyright.  Therefore, the purchaser will not obtain the right to reproduce or make copies of the work.

What if the artistic work is commissioned?

According to section 35(5) of the Act, the person who commissioned the work will own copyright for the following types of artistic works: photos taken for a private or domestic purpose, such as a family portrait or wedding photos; and paintings or drawings of a portrait.  For all other commissioned artistic works, the Author of the artistic works will be the Owner of copyright.  This is unless a written agreement to the contrary exists.  The commissioning person will generally have the right to use the work for the purpose it was commissioned for.

Can artistic works be reproduced?

It is an infringement for a person who is not the Owner to reproduce a work protected by copyright under section 36 of the Act.  If permission from the Owner is obtained, then the works may be reproduced.  Alternatively, it is possible for the Owner to assign or licence copyright pursuant to section 196(1) of the Act.

If copyright is assigned to someone else, then that person will become the new owner and will be able to reproduce the works.  If copyright is licenced, the licensee can only use the works in the way covered by the licence agreement.  A licensee may reproduce the works if the licence agreement allows them to do so.

Can similar works be created?

Copyright can be infringed if the works are reproduced or a “substantial” part of the works are used without permission.  There is no statutory definition of “substantial”.  Finklestein J in the case of TCN Channel Nine Pty Ltd & Ors v Network Ten Pty Ltd (No 2) noted that

‘there is no fixed rule for determining how much of a copyright work must be taken for it to be a substantial part of the work’.

As a guide cases such as IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 have defined “substantial part” as part of a work that is an important, distinctive or essential part.

If an individual has created works similar to those of another, the individual will not have infringed the other person’s copyright if it was a mere coincidence.  For a similar work to infringe another person’s copyright, it must been shown that: there is a similarity between the two (2) works; and evidence that the similarity is a result of copying, either directly or indirectly.

What if the author creates a similar work?

If an Author sells their work, the Author is still entitled to reproduce their work as they still own the copyright.  This is because the purchaser does not own copyright in the work they purchased, unless the copyright was assigned to them by express written agreement.

Section 72 of the Act refers to reproduction of part of a work in later works.  It provides that the copyright in an artistic work is not infringed by the making of a later artistic work by the same author if the author does not repeat or imitate the main design of the earlier work.

Further information

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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