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Copyright & Legacy Planning (Arthur Cox Representative)
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Copyright & Legacy Planning (Arthur Cox Representative)

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  • 1. Visual Artists Ireland – Get Together 2012 Copyright Law – The Living and the Dead (AKA a discussion of the law of copyright, commercial exploitation rights and estate planning issues) Pearse Ryan, Arthur Cox 15 June 2012
  • 2. INTRODUCTION• The internet and increased commercial activities of museums/galleries mean that copyright has increased in importance in the art world.• Artists resale rights (droit de suite), a subdivision of copyright, implemented across EU/EEA by EU Regulation and harmonised across EU/EEA – this brings into copyright scope those who deal in/buy/sell certain works of art.• Artists increasingly aware of their legal rights (copyright) - increase in arguments over (mis)appropriation of artists works.• The law of cultural property is a small but established legal discipline. 1
  • 3. DISCUSSION OVERVIEW1. Copyright • Classes of works protected by copyright (ie the subject matter of copyright) • Criteria for protection (ie that they be original) • The identity of the author • The need for fixation/permanence of the work • Qualifying factors for protection • The duration of protection • The identity of first owner of the copyright • The scope of copyright monopoly (i.e. economic rights) • Other rights analogous to copyright • Moral rights2. Estate Planning 2
  • 4. COPYRIGHTClasses of works protected by copyright• Copyright is a statutory right• Largely a negative right – the right to prevent others from doing unauthorised acts• As a statutory right there are statutory classes to which copyright applies (i.e. there are rules)• Relevant classes • Original literary works • Original artistic works 3
  • 5. COPYRIGHTClasses of works protected by copyright – contd.• What is an original artistic work?  Graphic work o painting/drawing/diagram/map/chart/plan o engraving/etching/lithograph/woodcut/similar work  Photograph, sculpture, collage  Works of artistic craftsmanship  Works of architecture (i.e. building or building model)• NOTE: copyright can also subsist in original literary works (written works), sound recordings/films/broadcasts and typographical arrangements of published editions (i.e. the image on the page)• One work can contain a number of different forms of copyright 4
  • 6. COPYRIGHTCriteria for protection• Artistic work must be “original”• A low threshold test – effort/endeavour/sweat of the brow rather than original intellectual creation• So some degree of skill and labour required of artist but test/threshold is low• With artistic works the skill and labour must apply to what is visually significant• Thus, mere “slavish copying” even with effort does not confer originality and thus copyright but the test/threshold is low and the Courts reluctant to act as arbitrars of what does/does not involve originality and thus copyright• Originality – not original thought (idea) but original application (expression) 5
  • 7. COPYRIGHTIdentity of the Author• For artistic and literary works – author = creator of work• “author” is term used in statute to describe creator• Can be sole or joint authorship – collaboration• Issues around user-generated – content and online artistic collaborations – can challenge the concept of “author” 6
  • 8. COPYRIGHTNeed for Fixation/Permanence of Work• For literary/dramatic/musical works copyright requires recording – in writing or otherwise• No such test/threshold for artistic works• But in practice courts will require evidence of the work AND copyright applies in expression not idea• Case law on fixation include Hughie Green (TV show format (Opportunity Knocks) not recorded), works of kinetic art (“Sand Pictures”) where court held no copyright as sand not a static medium 7
  • 9. COPYRIGHTQualifying Factors for Protection• Copyright law originally national – development of international treaties to confirm: (i) basis for national copyright protection; and (ii) harmonisation of enforcement• „National treatment‟ – allows artistic work protected by copyright in Berne Member State A (e.g. UK) to be enforced in B (e.g. Ireland)• Various tests including: (i) author is a national, resident or domiciled; or (ii) work was first “published” in State A• To evidence copyright advisable to add to works a copyright notice – © [name of copyright owner] [year of first publication] 8
  • 10. COPYRIGHTDuration of Copyright Protection• Life of author + 70 years from end of year of authors death• This term extended from life + 50 years by 1996 EU Regulation – extended term of certain copyrights 9
  • 11. COPYRIGHTIdentity of First Owner of Copyright• Excluding creation in course of employment, copyright will vest in author (aka the artist)• If work commissioned, similarly copyright vests in author unless written assignment of copyright• But area more complex than that – in certain circumstances the commissioner may claim ownership in equity• Authors may allow a copyright and collecting society (e.g. IVARO in Ireland and Design and Artists Copyright Society (DACS) in UK) to administer and protect their copyrights on their behalf• IVARO not owner by assignment of copyright but is authorised to act on behalf of author in express areas• Overall: copyright is a statutory right, primarily focused on expression (not idea) with limited originality threshold - overall an economic right 10
  • 12. COPYRIGHTEconomic Rights summarised:• Right to copy work (including for artistic woks making 2 dimensional copy of 3 dimensional work and vice-versa)• Copying = reproducing work in material form and including by electronic means and including transient/temporary copies• Right to issue copies to public• Right to communicate work to public (e.g by broadcasting/on- demand access and including uploading to website available for access via internet) 11
  • 13. COPYRIGHTScope of Copyright Protection (i.e. economic rights)• Overall: copyright infringed in work by person who, without consent of copyright owner, does or authorises another to do, any of the acts restricted by copyright• e.g. loan to museum who take photograph of work and commercially exploit reproduction or allow others to do so, without consent/licence of artist/artists representative body (e.g. IVARO) other copyright holder (by assignment) 12
  • 14. COPYRIGHTOther rights analogous to copyright and moral rights• Industrial Designs – designs reproduced by a manufacturing process and “industrially” applied to a product – relationship with “pure” or “fine” art (e.g. paintings, drawings and sculpture): • Applied to/incorporated in utilitarian object (e.g. wallpaper, fabrics etc) • Everyday object itself displaying some „artistic‟ element in shape or appearance e.g. furniture and consumer products • Overall copyright/industrial design relationship is complex• Publication rights – addition to scope of copyright – unpublished works (literary/artistic/other) in which copyright expired – applies with EEA related test • 25 year right from year of first publication • Publishing is broad term (exhibiting/photography)• Rental and lending rights – typically N/A to original version of artistic works rented/lent for exhibition• Droit de Suite – right of artists/estate to share in resale price of work 13
  • 15. COPYRIGHTMoral Rights• Continental law influence – emphasis on cultural value of authorship rather than economic rights• The personality of author as expressed in work protected as proprietary right (alongside exploitation rights)• Thus, to mistreat the work is to mistreat the author• Recent concept in Ireland/UK law• Right inalienable to author – can be waived (in writing) but cannot be assigned• Rights: • To be identified as author (right of paternity/to attribution) • To object to certain types of derogatory treatment of work (right of integrity) • To object to fake attribution of authorship• Complex to enforce – require prior assertion (e.g. see book liner details) – tell the world – name suffices for most artistic works• Term of rights question and commenced with CRRA 14
  • 16. ARTISTS RESALE RIGHTThe Droit de Suite• Another continental concept – right of artists and estate to receive % of resale price• An economic right but with moral right conceptual underpinnings – is inalienable by artist (except by will/inheritance law)• Inalienable – artist can assign copyright to another but not the right to resale %• Applies to artistic works – fine art painting caught but not video work/electronic media work – no physical embodiment exists to be bought/sold• Small compensation for absence by nature of most art of reproduction revenue applicable to other copyright works (e.g. literary works)• Role of collection agencies (e.g. IVARO)• Right not in existence in USA/Switzerland – auction houses• NOTE: applies to resale of work and not work economic rights (i.e. copyright) – e.g. sale on of assigned reproduction rights 15
  • 17. ESTATE PLANNINGWhy make a Will?• To direct who inherits property  Spouse/civil partner  Children  Family/members/friends/charities• To allow successors easier access to assets  Financial institutions (bank, credit union etc.)  Obtain grant of probate (production for 3rd parties and executors)  Admin of estate 16
  • 18. WHY MAKE A WILL?Parties with Legal Rights - Spouses & Children• Spouse:  If children – surviving spouse entitled to 1/3 share  If no children – surviving spouse entitled to ½ share  Family Home – separate• Children:  No entitlement to any specific share  But entitled to make application under S117 of Succession Act• Separation and Divorce Question 17
  • 19. THE WILLFormalities• In writing• Signed by testator or party instructed• Minimum x 2 independent witnesses• Testator minimum 18 years or have been married• Testator must be of sound mindExecutors/Trustees• Recommend minimum of 2• Ex and trustees can be same or different parties 18
  • 20. THE WILLAdult Children• Outright gifts – tax threshold at CGT• Rights under S117 Succession Act 1965 19
  • 21. TAXCapital Acquisitions Tax – Gifts/Inheritances• CAT – 30%• PA exemption per donor - €3,000GROUP RELATIONSHIP TO DONOR EXEMPT THRESHOLD 2012A son/daughter €250,000B brother/sister/niece/nephew/grandchild €33,208C relationship other than A or B €16,604NOTE: above is a very simplified summary of complex areas and other exemptions maybe available depending on nature of property 20
  • 22. TAXDonations of Works• Section 1003 of Taxes Consolidation Act 1997• Donation of heritage item• Claim credit of 80% of value against (certain) tax liability• Taxes covered – income tax, corporation tax, capital gains tax, gift tax and inheritance tax• Minimum open market value on item/collection of items of €150,000 and for collections minimum one item must have minimum value of €50,000 21
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