Two difficult areas of copyright law are about to become highly relevant for photographers and image libraries:
- The incidental inclusion exception, and
- What constitutes an artistic work?
The reason for this is that Section 52 of the Copyright, Designs and Patents Act 1988 (“CDPA”) is being repealed with effect from 28 July 2016.
Section 52 currently limits the term of protection for industrially exploited artistic works to 25 years. This is why it is currently possible in the UK to license photographs of artistic works comprising designer furniture or homewares such as lighting or ceramics once they have been on the market for 25 years, without having to wait much longer as one would in the case of other artistic works (the normal duration of copyright being life of the author plus 70 years).
Works of artistic craftsmanship
The most relevant category of artistic work in this context is the work of artistic craftsmanship. What constitutes a work of artistic craftsmanship? The two most important cases, Hensher v Restawile and Lucasfilm Limited v Ainsworth, show that the threshold for protection of a work of artistic craftsmanship is quite high. The IPO has issued guidance which includes the following points:
- It is not enough for a work (such as a piece of furniture) to look attractive to qualify as a work of artistic craftsmanship.
- The phrase “artistic craftsmanship” designates two requirements combined in the same work: artistic quality and craftsmanship.
- “Craftsmanship” presupposes special training, skill and knowledge for production.
- “Artistic” means it will have a real artistic or aesthetic quality and must be a work of art or fine art.
Helpfully, the guidance also notes that designing for mass production may cast doubt on whether a work is truly one of artistic craftsmanship.
Copyright in a work is not infringed by its incidental inclusion in various types of work including a film or photograph.
The leading case on incidental inclusion is The Football Association Premier League Ltd and others v Panini UK Ltd. The Panini decision concerned photographs of football players wearing their club strip which were reproduced in the form of stickers to be inserted into a collector’s album, as well as in further images printed in the album itself. The photographs reproduced the club or Premier League emblems or logos, which were copyright artistic works. It was important that the players appeared in what was recognisably their authentic club strip and the logos were held not to have been incidentally included.
The IPO guidance gives this example: “The exception would cover a photo or film of a kitchen with a teapot on the table (assuming that the particular teapot was a work of artistic craftsmanship). It would unlikely cover photographs of that teapot in which that work was the main subject of the photo, or a book with a series of photos of that teapot, especially if the teapot was the main focus of the photo or book.”
Incidental inclusion is not defined in the CDPA and it was said in the Panini case that it would be impossible to provide a definition that will be satisfactory for all purposes. Where an image includes an object that may be protected by copyright, photographers and image libraries will need to tread carefully.
This is a difficult area for photographers and image libraries. Getting legal advice every time a designer sofa appears in a shot isn’t realistic. Rights owners will mostly be more concerned with 3D copies of their works than photographs, but some (for example the Corbusier Foundation) have taken action in respect of photographs. The copyright protection threshold for mass produced designer items is relatively high, and the incidental inclusion exception will often be a good answer, but caution is advised while we see how the new restrictions work out in practice.