(The
following article is made available in arrangement with the Arts & Culture
Trust (ACT) and the Dramatic, Artistic and Literary Rights Organisation (DALRO).
See ACT’s website http://www.act.org.za/
André Myburgh is a South African attorney and
solicitor of England and Wales and a Fellow of the Institute of South African
Intellectual Property Lawyers. He is a consultant with attorneys Lenz Caemmerer
of Basel, Switzerland, where he specialises in local and international
copyright cases. Lenz Caemmerer are legal advisers to DALRO on international
copyright matters.)
Copyright – What It
Means For Visual Artists by André Myburgh
Copyright is pictured, with some
justification, as a complex area of law best left to experts. Yet, copyright in
an artistic work is potentially a valuable source of income for the artist who
created it, and it is therefore important for artists who make a living from their
works to have a basic understanding of copyright. Financial benefits from the
copyright in a work can endure long after the original work has been sold,
since the copyright in an artistic work normally does not pass to the buyer
with its sale. This article aims to set out how visual artists can use
copyright to be remunerated from licensed use of their works, over and above
the income generated by sales.
The term “artistic works” in the South
African Copyright Act, No 98 of 1979, includes “paintings, sculptures,
drawings, engravings” and other works of craftsmanship. It also includes “works
of architecture” and photographs, which are not dealt with specifically in this
article, since they enter the commercial markets differently from the other
fine arts, and slightly different rules apply to them. Each one of them
justifies its own article.
The artistic quality or merit of an artistic
work is not a factor in determining whether the work is eligible for copyright
protection. To be eligible for copyright, the artistic work only needs to be
original. As a result, many works which would not be deemed fine art also
qualify as “artistic works” under the Act, the most notable example being
technical drawings. Artistic works which are not fine art are also not considered
in this article, since it is limited to a discussion of copyright in works of
conventional fine art, such as paintings and sculpture, made by independent
artists.
The Copyright Act gives copyright protection
to original artistic works if the artist (called “the author” in the Act) was a
South African citizen or domiciled in the country when the work was made.
In addition, irrespective of the nationality
or domicile of the artist, copyright protection is also given to original
artistic works which were first published in South Africa, in other words, if
the work was first “issued” (to use the words of the Act) to the public in this
country. However, the Act does not regard the exhibition of a work of art as
“publication”. The first “issue” would therefore usually be the first sale of
the work or the first time the work was publicly offered for sale.
As a result of South Africa’s being a member
of two international treaties, the Berne Convention and the Agreement on
Trade-Related Aspects of Intellectual Property Rights, copyright protection is
granted to original artistic works of which the artists are citizens of the
other countries which are signatories to those treaties, or who were domiciled
in those countries when they made those works.
The topics below are extensively discussed in
the full article available on http://www.act.org.za/assets/files/pdfs/Copyright%20-%20What%20it%20means%20for%20Visual%20Artists.pdf
- Duration of copyright in artistic work
- Ownership of copyright
- Nature of copyright – What rights are given to the copyright owner?
- Exceptions to the rights of copyright
- International protection of copyright works
- Rights legislated for the benefit of artists outside South Africa
- The prospect of legislative developments in South Africa for copyright in the visual arts
- Collective management of copyright – a practical and viable solution for artists
Additionally, DALRO’s Standard Visual Arts
Mandates – one for living Artists and another for Heirs and Successors-in-Title
– can be found at http://www.dalro.co.za/
Email enquiries to visualarts@dalro.co.za or call 011 712-8330. - André Myburgh
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