1. Visual Artists Ireland – Get Together 2012
Copyright Law – The Living and the Dead
(AKA a discussion of the law of copyright,
commercial exploitation rights and
estate planning issues)
Pearse Ryan, Arthur Cox
15 June 2012

2. INTRODUCTION
• The internet and increased commercial activities of
museums/galleries mean that copyright has increased in
importance in the art world.
• Artists resale rights (droit de suite), a subdivision of copyright,
implemented across EU/EEA by EU Regulation and harmonised
across EU/EEA – this brings into copyright scope those who deal
in/buy/sell certain works of art.
• Artists increasingly aware of their legal rights (copyright) -
increase in arguments over (mis)appropriation of artists works.
• The law of cultural property is a small but established legal
discipline.
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3. DISCUSSION OVERVIEW
1. Copyright
• Classes of works protected by copyright (ie the subject matter of
copyright)
• Criteria for protection (ie that they be original)
• The identity of the author
• The need for fixation/permanence of the work
• Qualifying factors for protection
• The duration of protection
• The identity of first owner of the copyright
• The scope of copyright monopoly (i.e. economic rights)
• Other rights analogous to copyright
• Moral rights
2. Estate Planning
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4. COPYRIGHT
Classes of works protected by copyright
• Copyright is a statutory right
• Largely a negative right – the right to prevent others
from doing unauthorised acts
• As a statutory right there are statutory classes to which
copyright applies (i.e. there are rules)
• Relevant classes
• Original literary works
• Original artistic works
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5. COPYRIGHT
Classes of works protected by copyright – contd.
• What is an original artistic work?
 Graphic work
o painting/drawing/diagram/map/chart/plan
o engraving/etching/lithograph/woodcut/similar work
 Photograph, sculpture, collage
 Works of artistic craftsmanship
 Works of architecture (i.e. building or building model)
• NOTE: copyright can also subsist in original literary works (written
works), sound recordings/films/broadcasts and typographical
arrangements of published editions (i.e. the image on the page)
• One work can contain a number of different forms of copyright
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6. COPYRIGHT
Criteria for protection
• Artistic work must be “original”
• A low threshold test – effort/endeavour/sweat of the brow rather than
original intellectual creation
• So some degree of skill and labour required of artist but test/threshold
is low
• With artistic works the skill and labour must apply to what is visually
significant
• Thus, mere “slavish copying” even with effort does not confer originality
and thus copyright but the test/threshold is low and the Courts
reluctant to act as arbitrars of what does/does not involve originality
and thus copyright
• Originality – not original thought (idea) but original application
(expression)
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7. COPYRIGHT
Identity of the Author
• For artistic and literary works – author = creator of work
• “author” is term used in statute to describe creator
• Can be sole or joint authorship – collaboration
• Issues around user-generated – content and online
artistic collaborations – can challenge the concept of
“author”
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8. COPYRIGHT
Need for Fixation/Permanence of Work
• For literary/dramatic/musical works copyright requires
recording – in writing or otherwise
• No such test/threshold for artistic works
• But in practice courts will require evidence of the work
AND copyright applies in expression not idea
• Case law on fixation include Hughie Green (TV show
format (Opportunity Knocks) not recorded), works of
kinetic art (“Sand Pictures”) where court held no
copyright as sand not a static medium
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9. COPYRIGHT
Qualifying Factors for Protection
• Copyright law originally national – development of international
treaties to confirm: (i) basis for national copyright protection;
and (ii) harmonisation of enforcement
• „National treatment‟ – allows artistic work protected by
copyright in Berne Member State A (e.g. UK) to be enforced in
B (e.g. Ireland)
• Various tests including: (i) author is a national, resident or
domiciled; or (ii) work was first “published” in State A
• To evidence copyright advisable to add to works a copyright
notice – © [name of copyright owner] [year of first publication]
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10. COPYRIGHT
Duration of Copyright Protection
• Life of author + 70 years from end of year of authors
death
• This term extended from life + 50 years by 1996 EU
Regulation – extended term of certain copyrights
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11. COPYRIGHT
Identity of First Owner of Copyright
• Excluding creation in course of employment, copyright will vest in author (aka the
artist)
• If work commissioned, similarly copyright vests in author unless written
assignment of copyright
• But area more complex than that – in certain circumstances the commissioner
may claim ownership in equity
• Authors may allow a copyright and collecting society (e.g. IVARO in Ireland and
Design and Artists Copyright Society (DACS) in UK) to administer and protect their
copyrights on their behalf
• IVARO not owner by assignment of copyright but is authorised to act on behalf of
author in express areas
• Overall: copyright is a statutory right, primarily focused on expression (not idea)
with limited originality threshold - overall an economic right
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12. COPYRIGHT
Economic Rights summarised:
• Right to copy work (including for artistic woks making 2
dimensional copy of 3 dimensional work and vice-versa)
• Copying = reproducing work in material form and including by
electronic means and including transient/temporary copies
• Right to issue copies to public
• Right to communicate work to public (e.g by broadcasting/on-
demand access and including uploading to website available for
access via internet)
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13. COPYRIGHT
Scope of Copyright Protection (i.e. economic rights)
• Overall: copyright infringed in work by person who,
without consent of copyright owner, does or authorises
another to do, any of the acts restricted by copyright
• e.g. loan to museum who take photograph of work and
commercially exploit reproduction or allow others to do
so, without consent/licence of artist/artists representative
body (e.g. IVARO) other copyright holder (by
assignment)
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14. COPYRIGHT
Other rights analogous to copyright and moral rights
• Industrial Designs – designs reproduced by a manufacturing process and
“industrially” applied to a product – relationship with “pure” or “fine” art (e.g.
paintings, drawings and sculpture):
• Applied to/incorporated in utilitarian object (e.g. wallpaper, fabrics etc)
• Everyday object itself displaying some „artistic‟ element in shape or appearance e.g.
furniture and consumer products
• Overall copyright/industrial design relationship is complex
• Publication rights – addition to scope of copyright – unpublished works
(literary/artistic/other) in which copyright expired – applies with EEA related test
• 25 year right from year of first publication
• Publishing is broad term (exhibiting/photography)
• Rental and lending rights – typically N/A to original version of artistic works
rented/lent for exhibition
• Droit de Suite – right of artists/estate to share in resale price of work
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15. COPYRIGHT
Moral Rights
• Continental law influence – emphasis on cultural value of authorship rather than
economic rights
• The personality of author as expressed in work protected as proprietary right
(alongside exploitation rights)
• Thus, to mistreat the work is to mistreat the author
• Recent concept in Ireland/UK law
• Right inalienable to author – can be waived (in writing) but cannot be assigned
• Rights:
• To be identified as author (right of paternity/to attribution)
• To object to certain types of derogatory treatment of work (right of integrity)
• To object to fake attribution of authorship
• Complex to enforce – require prior assertion (e.g. see book liner details) – tell the
world – name suffices for most artistic works
• Term of rights question and commenced with CRRA
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16. ARTISTS RESALE RIGHT
The Droit de Suite
• Another continental concept – right of artists and estate to receive % of resale
price
• An economic right but with moral right conceptual underpinnings – is inalienable
by artist (except by will/inheritance law)
• Inalienable – artist can assign copyright to another but not the right to resale %
• Applies to artistic works – fine art painting caught but not video work/electronic
media work – no physical embodiment exists to be bought/sold
• Small compensation for absence by nature of most art of reproduction revenue
applicable to other copyright works (e.g. literary works)
• Role of collection agencies (e.g. IVARO)
• Right not in existence in USA/Switzerland – auction houses
• NOTE: applies to resale of work and not work economic rights (i.e. copyright) –
e.g. sale on of assigned reproduction rights
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17. ESTATE PLANNING
Why make a Will?
• To direct who inherits property
 Spouse/civil partner
 Children
 Family/members/friends/charities
• To allow successors easier access to assets
 Financial institutions (bank, credit union etc.)
 Obtain grant of probate (production for 3rd parties
and executors)
 Admin of estate
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18. WHY MAKE A WILL?
Parties with Legal Rights - Spouses & Children
• Spouse:
 If children – surviving spouse entitled to 1/3 share
 If no children – surviving spouse entitled to ½ share
 Family Home – separate
• Children:
 No entitlement to any specific share
 But entitled to make application under S117 of
Succession Act
• Separation and Divorce Question
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19. THE WILL
Formalities
• In writing
• Signed by testator or party instructed
• Minimum x 2 independent witnesses
• Testator minimum 18 years or have been married
• Testator must be of sound mind
Executors/Trustees
• Recommend minimum of 2
• Ex and trustees can be same or different parties
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20. THE WILL
Adult Children
• Outright gifts – tax threshold at CGT
• Rights under S117 Succession Act 1965
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21. TAX
Capital Acquisitions Tax – Gifts/Inheritances
• CAT – 30%
• PA exemption per donor - €3,000
GROUP RELATIONSHIP TO DONOR EXEMPT THRESHOLD 2012
A son/daughter €250,000
B brother/sister/niece/nephew/grandchild €33,208
C relationship other than A or B €16,604
NOTE: above is a very simplified summary of complex areas and other exemptions may
be available depending on nature of property
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22. TAX
Donations of Works
• Section 1003 of Taxes Consolidation Act 1997
• Donation of heritage item
• Claim credit of 80% of value against (certain) tax liability
• Taxes covered – income tax, corporation tax, capital
gains tax, gift tax and inheritance tax
• Minimum open market value on item/collection of items
of €150,000 and for collections minimum one item must
have minimum value of €50,000
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