The Copyright Act 1968 (Cth) governs copyright law in Australia. It states that copyright will subsist in a work that is original (not copied from elsewhere) and reduced to material form.
Copyright does not subsist in an idea. However, once that idea is reduced to material form, it will be protected by copyright law. For example, the idea of a boat in the sunset by itself will not be protected by copyright law - once that idea is expressed as an image by painting or drawing the boat in the sunset, it will attract copyright protection.
Copyright protection exists in a wide range of items including artwork, books, written material, photographs, buildings, sculptures, musical works, chorographical sequences, film, architectural plans, videos, and computer programs, to list a few. It even protects a child’s scribble on a piece of paper. Copyright exists without the need to register a work.
These drawings by Jasmine Givoni when she was 8 years old are protected under Copyright Law. If someone were to take a photo of one of these drawings and reproduce it without permission, for example, on a restaurant menu, this would be an infringement of Jasmine’s copyright in the drawing.
Copyright gives the copyright owner a ‘bundle’ of exclusive rights. These rights include the right to reproduce the work (such as using an image of a painting in a book), to publish the work (such as publishing it in a book) or to communicate the work to the public (such as by posting the work on a social media platform).
Only the copyright owner may grant permission for others to use the work. Such acts, if done without the permission of the copyright owner, could constitute infringement of the copyright in the work.
Copyright ownership-who owns what?
We now know that a copyright owner possesses important legal rights in relation to a work, but who exactly is the copyright owner?
The default position under copyright law in Australia is that the creator of the work owns the copyright in their work. Fair enough. However, if the work is created by an employee within the scope of their employment, the employer will own the copyright. These rules are subject to agreement to the contrary, so always read any contracts carefully, especially if you are a freelancer.
Distinction: the intellectual property vs. the tangible product
It is important to note that the intellectual property, and the actual tangible product, are two very different things.
It is one thing to commission a painting to hang on the wall of your restaurant. You can certainly buy that painting and put it up on your wall. No intellectual property law issue exists there.
However, it is quite another thing to assume that just because you paid for the painting, you can then go and reproduce the work or a part of it for use on your restaurant’s menus and signage.
Acts such as reproducing the artwork on a menu, would constitute copyright infringement if you did so without the copyright owner’s permission to use the work in that particular form.
This is where licences and assignments of intellectual property rights come into the picture. Let’s explore this area further.
Licences and assignments
In her talk, Sharon touched upon the importance of putting contracts in place at the start of a client relationship to help alleviate any potential misunderstandings.
Specifying important aspects of the working relationship helps to ensure that everyone is on the same page in relation to their rights and obligations from the outset.
In a contract, it is generally customary to include terms outlining the scope of the project, the number of revisions allowed in the agreed price, provisions regarding delays, fee structures, and when additional costs might be incurred, amongst other things.
But it is also important to include in the contract provisions relating to the intellectual property created during the course of the relationship. The contract should specify what intellectual rights (if any) are being granted and whether the client is being granted an assignment or a licence over the work. Failing to specify such terms may result in customers assuming that they may use the designs as they wish.
Basics
Copyright licensing allows the copyright owner to retain the copyright but gives the licensee permission to use the work in a particular way. Therefore, the owner retains control over how the work is used and the right to be paid for additional uses of the work.
A copyright assignment, on the other hand, means the owner completely transfers the copyright in a work to the assignee and, as a result, (unless he or she only grants a partial assignment of copyright), he or she may forgo all rights to sell or reproduce the work.
In a way, licensing is not that different from renting a house. When you are renting, you obtain the use of the house for a limited time, subject to the payment of rent. You cannot do whatever you want with the house, because, at the end of the day, you do not own it.
What is a license?
There are many different ways in which the rights to use a work may be divided. You may, for example, grant a book publisher the right to publish your drawing in print, but retain all other rights, including the right to publish the drawing in an eBook.
When licensing work, you should specify the limits of the use you are granting the other party. These details include but are not limited to:
how the work is to be used
whether the license is exclusive or non-exclusive
how long the permission lasts
the geographical area in which the license is granted
whether any rights are given to change or modify the image
whether the rights holder is to be credited when the work is reproduced
how the licensor will be compensated for granting the licence to the other party.
This list is not exhaustive.
What is an assignment?
A copyright assignment is a whole different kettle of fish. Here, the copyright owner transfers all of his or her rights to another party.
After assigning a copyright, you no longer own your copyright; the other party does. Furthermore, any attempt by the original copyright owner to reproduce or sell the work could put them at risk of copyright infringement of the work they had initially created. This would be the case unless the licensing agreement specifically allows the copyright owner to take such steps.
As a side note, for a copyright assignment to be effective, s 196(1) of the Copyright Act 1968 (Cth) specifies that the assignment is not valid unless that assignment is in writing and signed by the owner of the rights being assigned.
Case study- Drunk on Water
Artist and designer, Susie Monte, has enjoyed exploring artistic methods with colours and shapes from a young age.
Several years ago, Susie founded the website “Drunk on Water”.
Two of Susie’s designs are pictured below.
Even though she sold these images in the form of prints off her website, just because someone purchases bought a print doesn’t mean that they can use them any way they want. They cannot copy them and post them online for example. These acts would constitute infringement of Susie’s copyright in the image unless they had her permission, via an assignment or licence, which granted them the rights for such use.
Photos of artwork reproduced with the permission of Susie Monte.
Summary
Hopefully this has cleared up some of the basics.
Copyright is a complex area of the law and contracts involving copyright licensing and assignment can be particularly complicated.
When in doubt, have a lawyer review a contract before you sign it to ensure that you understand the rights you are giving up and the rights you will retain.
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