The document discusses copyright law and estate planning issues relevant to visual artists. It provides an overview of copyright, including the classes of works protected, criteria for protection such as originality, and the economic and moral rights of authors. It also discusses artists resale rights, which provide artists with a share of resales of their works. Regarding estate planning, it notes the importance of wills for directing inheritance and accessing assets, and outlines tax implications for gifts and inheritances.

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 OVERVIEW
1. 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 rights
2. Estate Planning
2

4. COPYRIGHT
Classes 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. COPYRIGHT
Classes 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. COPYRIGHT
Criteria 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. COPYRIGHT
Identity 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. COPYRIGHT
Need 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. COPYRIGHT
Qualifying 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. COPYRIGHT
Duration 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. COPYRIGHT
Identity 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. COPYRIGHT
Economic 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. COPYRIGHT
Scope 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. COPYRIGHT
Other 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. COPYRIGHT
Moral 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 RIGHT
The 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 PLANNING
Why 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 WILL
Formalities
• 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 mind
Executors/Trustees
• Recommend minimum of 2
• Ex and trustees can be same or different parties
18

20. THE WILL
Adult Children
• Outright gifts – tax threshold at CGT
• Rights under S117 Succession Act 1965
19

21. TAX
Capital Acquisitions Tax – Gifts/Inheritances
• CAT – 30%
• PA exemption per donor - €3,000
GROUP RELATIONSHIP TO DONOR EXEMPT THRESHOLD 2012
A son/daughter €250,000
B brother/sister/niece/nephew/grandchild €33,208
C relationship other than A or B €16,604
NOTE: above is a very simplified summary of complex areas and other exemptions may
be available depending on nature of property
20

22. TAX
Donations 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

23. 22