Artlaw Retrospective

Artist’s Copyright

Henry Lydiate on the scope of artist’s copyright

Art Monthly cover designs 1976–2026

Five months after the first Artlaw column was published in October 1976, a highly influential blueprint for the modernisation of UK intellectual property law was delivered to Parliament: The Whitford Committee Report on Copyright and Designs Law, 1977. Sir John Whitford QC, an intellectual property law specialist High Court Judge, was commissioned by the UK government in 1973 to review the then latest Copyright Act 1956 and recommend reforms. Whitford’s introduction included what has become a classic explanation of the raison d'être for copyright:

‘A writer writes an article about the making of bread. He is not entitled to a monopoly in the writing of articles about the baking of bread. But the law has long recognised that he has an interest not merely in the manuscript, the words on paper which he produces, but in the skill and labour involved in his choice of words, and the exact way in which he expresses his ideas by the words he chooses.

If the author sells copies of his article, then again a purchaser of a copy can make such personal use of it as he pleases. He can read it or sell it second-hand, if he can find anyone who will buy it. If a reader of the original article is stimulated into writing another article about bread, the original author has no reason to complain.

But it has long been recognised that only the original author ought to have the right to reproduce the original article and sell copies thus reproduced. If other people were free to do this, they would be making a profit out of the skill and labour of the original author.’

This figurative justification for copyright emphasises that it is not just a statutory author’s right, but a matter of fair play: it posits that if an author invests skill and labour into a creation, they have a natural moral and legal right to own the fruits of that work. It also demonstrates the fundamental legal requirement of ‘originality’ for copyright protection of a work, and that copyright does not protect original ideas: it protects the original expression of ideas.

Whitford recommended reforms of longstanding copyright rules that had been developed since the UK’s first copyright law in 1710, which protected only literary works but laid foundations for the gradual addition of other specific forms of origination. Engravings, prints, lithographs and sculpture were added throughout the 18th century. In 1862, paintings, drawings and photographs were the last ‘fine arts’ category to be included. Classification of protected forms of expression is now a common feature of copyright laws worldwide.

In 1886, the UK was influential in framing the international Berne Convention for the Protection of Literary and Artistic Works (Berne). At the peak of the Second Industrial Revolution – heralding the dawn of the ‘age of mechanical reproduction’– countries faced the same two fundamental copyright problems, which Berne successfully addressed: national copyright laws would no longer be inconsistent with each other, and would henceforth conform to common standards; and those consistent national authors’ copyrights would be recognised by every Berne country – thereby making them enforceable throughout the ‘Berne Union’. In 1908, Berne made improvements, notably: copyright protection would be automatic when a work was created, without complying with any formalities; and would endure for at least the author’s life plus 50 years thereafter.

The Copyright Act 1911 consolidated the ‘glorious muddle’ of 22 separate UK copyright laws enacted between 1735 and 1906, and implemented new uniform categories of works: artistic, literary, dramatic and musical. Films were brought into protection by an authoritative UK court decision in 1912, which ruled that each frame was in law a photograph (and so within the ‘artistic’ category). However, ‘industrial’ designs created for mass production were removed from copyright protection, into their own separate statutory registration scheme of monopoly for a short term of years. The 1911 Act was repealed by the Copyright Act 1956, which re-enacted foundational copyright principles and provisions from previous centuries, and introduced new measures.

This was the UK copyright landscape when Art Monthly began in 1976. During the next decade, Artlaw explained the then current 1956 law of artist’s copyright. In 1984, the first UK organisation solely dedicated to enforcement of artists’ copyrights was established: the Design and Artists Copyright Society (DACS). Artlaw and DACS jointly and separately contributed to debates for reform, responded to the UK government’s fitful consultations, and lobbied Parliamentarians – repeatedly citing the case for modernisation advocated by Whitford. In November 1988, Parliament enacted the current Copyright, Designs and Patents Act (CDPA).

On 1 August 1989 the CDPA was implemented, radically improving copyright and designs protection. Arcane provisions of the 1911 and 1956 Acts were repealed and replaced by a more logical and consistent new framework. The CDPA continues Berne’s requirement that protection is automatic when work is made, if it meets three key criteria: more than negligible or trivial artistic skill and labour was applied in the origination process; it has visual appeal; and is fixed in a material or digital form. Copyright continued to last for the artist’s life plus 50 years thereafter (increased to 70 years in 1996).

Artistic works are divided into three broad categories: first, works made in traditional forms irrespective of the ‘artistic quality’ of the image/object, specified as graphic works, photographs, sculpture or collage; second, works of ‘artistic craftsmanship’ not created in one of the traditional forms, but only if they have ‘artistic merit’; third, works of architecture being a building or model for such.

These categories are not further defined, but are described: ‘graphic work’ includes (a) any painting, drawing, diagram, map, chart or plan, and (b) any engraving, etching, lithograph, woodcut or similar work; ‘photograph’ means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film; ‘sculpture’ includes a cast or model made for purposes of sculpture; ‘building’ includes any fixed structure, and a part of a building or fixed structure. ‘Artistic craftsmanship’ is not described, but evidently embraces 3D objects of ‘fine art’ not chiefly constrained by functionality, such as: artists’ book works, ceramics, furniture, glass works, installations, jewellery or mixed-media assemblages.

The first copyright owner of all artistic works made on/after 1 August 1989 is automatically the author, even if commissioned – unless a written commission contract states otherwise. For artistic works made by an employee (not by an independent freelancer), the employer is automatically the first copyright owner – unless the employment contract states otherwise. For works ‘generated by computer in circumstances such that there is no human author of the work’, the author-cum-first copyright owner is designated as the person who undertakes ‘the arrangements necessary for the creation of the work’ and copyright in these works endures for a fixed term of 50 years from the end of the year in which the work is generated, as an exception to the normal length of the author’s life plus 50 (now 70) years – because there is no human author.

Whenever copyright ownership laws change, it is common legislative practice worldwide for pre-change rules to continue to determine the first copyright owner of works made before the law changed. For works made before 1 August 1989, the first copyright owner remains the artist if un-commissioned; but, if commissioned, it remains the commissioner of prints, paintings and drawings that are portraits, and photographs. For un-commissioned photographs made before that date, the first copyright owner is not the taker but the owner of the material on which the photographic image was taken (the negative film, or photo-sensitive screen/plate used for photo-printmaking).

Primary copyright infringement occurs when anyone not authorised by the copyright owner does a ‘restricted act’ to a work: copies or issues copies to the public; broadcasts; makes an adaptation, or does any of the restricted acts in relation to an adaptation. Copying includes: not only reproducing the whole work but also appropriating an essential part; storing by electronic means; or making copies which are transient or incidental to some other use. Publication includes putting into circulation copies not previously circulated in the UK or elsewhere. Two-dimensional works made into three-dimensions, and vice versa, are also infringing acts. A copyright owner does not need to prove that the infringer intended to do the restricted act, or was reckless or even careless about it – the mere fact of doing the act is the infringement.

Limited copying of work is permitted, without the copyright owner’s authorisation, including for the purposes of: non-commercial private research, criticism and review, and current news reporting; making and merchandising two-dimensional reproductions of sculpture and works of artistic craftsmanship permanently located in publicly accessible venues or places; and personal copying for education. A new provision permits works to be copied for the purposes of advertising their sale. If artists do not own copyright in their works, they are permitted to reproduce parts of their earlier work in subsequent works, so long as they do not repeat or imitate the ‘main design’ of their original.

Copyright was radically changed for ‘industrial’ designs, meaning a design for the appearance of an article intended to fulfil a specific (non-artistic) function and, usually, to be mass-produced. The CDPA distinguishes such designs from works of ‘fine art’, which perform no function other than being viewed in and of themselves. The law of designs has always tried to meet conflicting needs: to provide protection to reward human creativity, usually by copyright, and to allow competition in the production of articles that fulfil a particular function or purpose, usually by a scheme of monopoly registration for a limited reasonable term. Since 1911, UK legislation has failed to reconcile these conflicting needs.

The CDPA creates a new automatic ‘design right’: it applies to original non-commonplace designs of the shape or configuration of articles that are to be mass-produced (excluding ‘must-fit’ or ‘must-match’ designs of spare parts for equipment or products) and lasts for five years from origination, then for ten years from first marketing. The right excludes copyright-protected artistic works; but if they were permitted by the copyright owner to be exploited commercially as 3D versions of the work, copyright protection was lost 25 years after being first marketed (this provision was repealed in 2017).

Since 1989, the CDPA has been amended numerous times, and Artlaw has tracked and explained changes affecting artists. Reforms were driven chiefly by the EU’s harmonisation Directives to Member States in response to developments in digital technology.

On 1 January 1996, the length of copyright was generally extended from 50 to 70 years after the artist’s death for works made on/after that date, and for works made by artists who died between 1 January 1956 and 31 December 1995. Exceptional and complex transitional provisions were made for photographs taken before 1 August 1989: in most cases, copyright lasts for the taker’s life plus 70 years thereafter, but it may be less depending on the date of death and whether the work was published.

From 31 October 2003, the CDPA was amended ‘to harmonise certain aspects of copyright and related rights in the information society’. Copyright owners are given a new exclusive right to prohibit or authorise communication of a work to the public by electronic transmission. The right includes making a work available ‘on-demand’ so that the public can access from a place and time individually chosen by them, and means that transmission via the internet is not permitted without prior permission. New provisions are made to protect copyright works, especially computer programs, that have had applied to them technical devices to prevent their being unlawfully copied, downloaded, transmitted, or otherwise dealt with electronically.

On 1 June 2014, the CDPA regularised common digital practices that had developed over the past decade. Personal copying from one medium or device to another is permitted for non-commercial private purposes (including cloud storage or other archiving), but not for giving personal copies to others – although such copying done before 1 June 2014 is legitimised. New provisions allow any use (not only digital) for the purposes of caricature, parody, pastiche, or quotation, so long as such use is non-commercial fair dealing. Only limited and moderate amounts are allowed to be appropriated without permission, not the whole or substantial parts of others’ works: fragments may be ‘cut and pasted’ to create a new collage or assembly, including text, recorded sound, film and video, and broadcast material. Courts decide on a case-by-case basis what amounts to caricature or parody or pastiche, and fair dealing. In deciding whether a dealing is fair, courts may consider: how a ‘fair-minded and honest person’ would deal with the work; the nature and extent of appropriation; and any commercial damage the dealing may have done.

From 28 January 2017, if commercial exploitation is permitted by the copyright owner, by making and marketing 3D versions of the work, copyright is no longer automatically reduced to 25 years from the end of the year in which such merchandise is first marketed – and therefore continues for the artist’s lifetime plus 70 years post-mortem.

In 2018, the UK enacted the EU Withdrawal Act, which converted all EU law into UK domestic law on full Brexit day, 1 January 2021. In this way, ‘Retained EU Law’ continues to be a fundamental part of UK law, including the CDPA, but from which UK legislation may henceforth diverge.

Governments worldwide are currently struggling to keep pace with the impact of generative artificial intelligence (GenAI), especially commercial industries’ unrestricted use of authors’ copyright works to train GenAI tools. Although the CDPA deals with uses and abuses of digital technology, it is currently unclear whether GenAI training (using copyright-protected artistic works without permission) is ‘substantial’ enough copying to constitute infringement. To date, UK court decisions have yet to clarify the infringement matter.

Further copyright questions arise from artists using GenAI tools to make works: whether wholly computer-generated output is, or should be, protected by copyright; if so, who is, or should be, the author/first copyright owner; and whether to amend the CDPA, which currently gives copyright protection to works ‘generated by computer in circumstances such that there is no human author of the work’. The current position of the UK’s Intellectual Property Office is that ‘it is unclear whether removing [protection for computer-generated works] would either promote or discourage innovation and the use of AI for the public good’, but the UKIPO does not rule out future changes.

Independent research was recently commissioned by the UK’s Department for Culture, Media and Sport into AI Copyright and Licensing in the Creative Industries. The research examines the economic impact of different licensing and remuneration arrangements for creative content used by AI developers, and the researchers called for views from artists and other authors. Research findings will inform a wider UK government report on AI and Copyright, scheduled for release by Easter 2026.

Unless and until the UK government decides its approach to dealing with current legal uncertainties surrounding artist’s copyright and uses of GenAI, Artlaw continues to offer UK artists essential guidance on copyright; namely:

• work must satisfy the legal originality test to qualify for copyright protection;
• if legally original, work automatically qualifies for copyright protection when made;
• if originating conceptual work, ideas are not copyright-protected;
• for works of artist-employees, employers first own copyright unless employment contracts state otherwise;
• copyright ownership is the exclusive right to prohibit or authorise doing ‘restricted acts’ to a work;
• restrictions include: copying; issuing copies to the public; broadcasting; making an adaptation or doing any restricted acts in relation to an adaptation; and communicating to the public by electronic transmission, which includes making work available on-demand;
• certain specific acts may be permitted, including: non-commercial fair dealing for the purposes of private research, criticism and review, caricature, parody, pastiche, or quotation; current news reporting; advertising for sale; and making and commercially using two-dimensional reproductions of sculpture and works of artistic craftsmanship, if either of those works is permanently situated in a public place or in premises open to the public (even if entry payment is required);
• copyright infringement settlements may generate income by licensing previously unauthorised reproductions (and future ones);
• income may be self-generated by proactively reproducing and merchandising works or licensing others to do so;
• exclusive licences must be written to be valid;
• non-exclusive licences may be valid if informal, but should always be written;
• for the 70 years after death, inheritance of copyright should be planned and a Will executed accordingly;
• ‘intestacy rules’ govern copyright inheritance after death, when there is no Will expressly dealing with the remaining 70 years of copyright;
• work that appropriates the whole or a substantial part of another artist’s work may infringe copyright in the work that is appropriated – but may not infringe if the other artist died before 1956.

Henry Lydiate is an art lawyer and adviser to www.artquest.org.uk.

First published April 2026.

Art Monthly celebrates its 50th anniversary and 500th issue in October 2026. Henry Lydiate marks the magazine’s 50th year by reviewing his Artlaw column since its first publication in 1976. Throughout 2026, one broad subject is explored each month, noting significant events and issues, and commenting on key changes and developments to date.