The artist’s copyright and its limitations

The artist’s copyright and its limitations

The artist who creates a work of visual art is granted the right to determine what is done with the work. This right covers all types of use and distribution of the work both in its original and in modified form, which also includes using a different method or form of art. Utilisation of rights to someone’s copyrighted work requires permission from the creator.

The rights of a creator of an artwork are divided into economic and moral rights. This division is significant in that only the economic rights can be completely transferred. In connection with this, it should be noted that assigning a copy of a work does not automatically include transferring copyright to it. For example, assigning a video copy does not in itself convey the right to public presentation or further distribution of the work.

A core element of copyright is the right to produce a copy of the work. This means all types of reproduction of the work: printing, duplicating, copying, and saving. Photographing an artwork involves copying a work. So does transforming, for example, a photograph or artwork into digital format.

Another right related to the economic utilisation of copyright is the right to make the work accessible to the public. Depending on the type of work, the way this is implemented may be exhibiting, displaying, distributing, or conveying. With regard to visual works of art, this is about, above all, displaying the work. Conveying a work, on the other hand, means not only physically conveying it but also conveying it online.

The economic rights referred to are the part of the copyright that can be an object of economic exchange. Usually the artist has the right to receive remuneration for assignment of his or her economic rights connected with copyright – for instance, for use of the work. For example, in the case of photographs, this is the basis for the right to remuneration for use of a photograph online and for the artist’s right to receive remuneration for exhibiting a work owned by him or her in a place such as a gallery.

Moral rights include the right to be acknowledged as creator and the right to respect. The right to acknowledgement requires mentioning the name of the creator of the work in connection with the work, in accordance with good practice. The respect right prohibits changing of the work in a way that would be detrimental to its artistic value.

An artist has the right to view the work he or she has conveyed. Exercising this access right that belongs to the artist (and partly to his or her heirs) requires that accessing the work be necessary with regard to the creator’s artistic work or implementation of his or her economic rights, and that accessing the work not cause undue disadvantage to the owner or holder of the work. Exercise of the access right may be necessary, for example, for the purpose of photographing the work for a register or a catalogue of works.

The exclusive right of the creator is not absolute. The creator can transfer rights included in the copyright by contractual means. In addition to this, copyrights are limited in many ways by copyright legislation.

Limitations to copyright are imperative. By entering into agreements, the artist cannot increase his or her exclusive right insofar as rights have been directly limited by law.

The limitations apply only to published works. They do not extend to works that are in the artist’s studio or desk drawer and are still unpublished. Below, we describe the most important limitations to copyright of works in the artistic sector.

In practice, the most significant copyright limitation is related to private use of a work. Utilising works for private use is excluded from copyright protection. A private person has the right to copy a work for his or her personal use. Copying an illegal copy of a work is forbidden, even for private use.

Excerpts from a copyright-protected work may be quoted. This copyright limitation is referred to as the citation right. In visual arts, the main form is image citations. As with other copyright limitations, the citation right covers only published works. For purposes of news operations, images of artwork related to the news text may be used when doing so is necessary to shed light on the news event, on the condition that the artwork was not produced for a newspaper or magazine.

Using image citations outside news operations is allowed, but then the citing must be done in accordance with good practice and to the extent required by the purpose of the citation. The admissibility of a citation is resolved separately for each individual case. This evaluation considers especially the purpose of the citation and the relationship between the quoted part and the work as a whole. With images, the citation may involve even a complete work. Citations from previous works can, in principle, be used in all types of works.

For compliance with good practice, it is required that the citation serve as an aid in the intellectual creative work of the person citing the work. This means that the citation cannot be completely unconnected to the rest of, or a standalone part of, the work entirety; the citation needs to have a relevant connection to the work of the person citing the image. Illustration accompanying the writing of the person performing the citing cannot be considered a relevant connection.

The work to be cited and its creator must be mentioned in keeping with good practice.

Images of a published work of art related to the text may be included in a critical or scientific presentation also. By virtue of this limitation rule, however, it is not allowed to photograph a statue, for example, for an art book in which the images clearly form the main content of the presentation.

The copyright of works displayed in an exhibition is limited to purposes of communication and marketing. A work displayed in an exhibition or a museum collection may be photographed for communication with regard to the exhibition or sales or for an exhibition catalogue. However, this copyright exception does not extend to digital content. Including a photograph of a work of art in an exhibition catalogue to be published online requires permission from the creator.

Photographing a work of art without permission from the creator is usually allowed if the work is permanently on display in a public location, such as a park. However, the photograph must not be used with intent to profit – for example, as part of a book to be distributed as a commercial product when the work of art is the main theme of the photograph.

Whether the photographing of a work of art on public display is covered by the creator’s exclusive rights depends, for example, on the position of the artistic work with respect to the photograph as a whole, on the purpose of use of the photograph, and on the content of the publication in which the photograph of the work (e.g., a sculpture) will be included. Permission is usually not needed if the work is displayed in the background in the photograph or is otherwise of secondary significance in the photograph as a whole. Permission is needed in the case of an advertisement photograph in which the work of art is intentionally a part of a staged ensemble, even if the portion of the entire presentation consisting of that work would be of less significance.

Use of photographs taken from a work of art may be allowed without the permission of the creator also when the context is a compiled work, such as a textbook. For such an educational purpose, photographs may be taken of published works in connection with the related text. The creator then has a right to remuneration for the citation.

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