These guidance notes have been produced by combining Arts Council England’s guidance from 2011 in relation to online arts offering The Space; with AmbITion England partner Own-it’s copyright factsheets, to provide as much helpful information as possible to any organisation or artist considering the live or on-demand publication online of artistic work. You can also check out the copyrighthub.co.uk’s links to how to seek licenses and rights and copyright organisations and seek help from copyrightuser.org.
REMEMBER: you are permitted by law to use copyrighted material (without having to seek permissions) for: research and private study, criticism, review and news reporting, incidental inclusion, and educational purposes.
BUT! Unless you create all elements of digital work entirely yourself so it holds no copyrights belonging to others, for any digital version of an artistic production, there are a variety of rights that must be bought out or licensed from:
- contributors engaged for the production (e.g .performers, musicians, composers, writers, artists, photographers, directors)
- owners of existing copyright in the materials that may have been used in the commission (e.g. existing literary, dramatic, musical or artistic works including photographs) and films or sound recordings that embody or contain these underlying works
- the arts organisation or company itself, third party producers (i.e. independent production companies), sub-contractors, co-producers or distributors, each of whom may have certain rights in the project (e.g. DVD distribution rights)
- other rights owners (e.g. format owners – some quiz or game shows are owned by third parties, sports rights holders)
Advice should be sought from the respective talent union (or via their representative or deputy if known to you), collecting society, or organisation representing the rights owner. These organisations will have either pre-existing terms or rights guidance for the type of use you are considering. If your work is like a digital production already in existence, then point this out. The main organisations are listed further down this page.
When considering the rights that you wish to license, it is good practice (and saves time in the long run) to be clear about these basic points:
- what copyrighted work/contribution are you using?
- where it is going to be used?
- how it is going to be used and for how long?
- will you be charging users for use in the longer term, or offering it freely? (the latter may still require payment for rights clearance)
Regarding specific use of the work online, you might also wish to consider the following questions:
- will the work be ‘broadcast’ (ie a simultaneous transmission of the same live or pre-recorded content to many recipients at a specific time), or ‘made available’ for on-demand viewing, so a user can access the work at a time of their choosing?
- will it be streamed and/or downloadable?
- if downloadable, will the file be protected (i.e. Digital Rights Management technologies – DRM – applied so that, for example, it is only available for a limited period of time)?
- will it be temporary or permanent?
Cultural organisationa organisations will need to consider each work carefully and decide upon the specific rights and the duration of such rights to be cleared. Some examples of points to consider are set out below:
- you may want to show the work in your own gallery space, in this case you will need to clear ‘non-theatrical’ rights
- if you wish to continue to make a work available beyond a set, specific time duration to ensure a more permanent legacy it will need to clear a longer duration of rights
- if the work is a podcast then it will by definition need to be cleared for download
- user-generated content will need express clearance from the users – you can ask for user-generated content to be created with the appropriate Creative Commons license
- if you wish the user to manipulate a copyright work, you will require express clearance from the rights owner as you will need to consider the ‘moral rights’ of the copyright owner (in particular their ‘integrity’ and paternity’ rights) – advice should be sought on this issue from the appropriate rights organisation.
If you are commissioning the work from scratch, these tips apply, but also read our guide to dealing with rights when commissioning.
Further advice can be sought from the following contributor organisations:
Musician’s Union (musicians)
Incorporated Society of Musicians (musicians)
Phonographic Performance Ltd (PPL) (Performers in Commercial Sound Recordings)
Songwriters, composers and music publishers
Commercial sound recordings
British Association of Picture Libraries and Agencies (BAPLA) – has links to most of the picture libraries through whom you need to clear photographic rights directly.
Acquired film footage
Federation of Commercial and Audio Visual Libraries (FOCAL) – or contact the respective film library, broadcaster or owner/licensor
In order to obtain clearance to film work that belongs to another person, you will need to identify the intellectual property owner of the rights in each work you intend to use. You will also need to check that the person you have identified owns all the rights in the work; it is possible that the rights may be owned by more than one person. This General Clearance Letter from Own-it can be used for film and TV.
Directors (film and television)
Working with characters that have been designed by someone else? Check out this Own-it Factsheet on Character Design
Working with clothes made by fashion designers? Look at this article by Own-it, where they show which elements of the working process are protected by copyright.
World Intellectual Property Organisation has a directory of all international IP offices.
European IPR Helpdesk – this is a service initiative that provides information, first-line support and training on IP and IPR matters to current and potential participants of EU funded projects focused on Research and Technical Development (RTD) and the EU’s Competitiveness and Innovation Programme (CIP). The service is then directed to researchers, universities, PROs and SMEs in order for them to build their own capacities to deal with IP on a daily basis. In addition, the European IPR Helpdesk offers IP advice to European SMEs that are in the process of negotiating or concluding transnational partnership agreements.
Whether you need personal assistance on a specific IPR issue, want to be informed about the latest developments in the world of IP and R&D in Europe, or are interested in a training session on IPR – the European IPR Helpdesk is the right partner to turn to.
The Helpline service operated by a team of experienced IP lawyers offers professional advice for your IP questions within three working days.
Additionally, the European IPR Helpdesk participates in awareness raising events and organises IPR training throughout Europe, based on a practical and comprehensive approach. Regular publications such as an email newsletter and a three-monthly Bulletin make sure that you are up to date on the latest IP and IPR news. All these services are provided free of charge.
Want to know more?
Get in touch directly with the European IPR Helpdesk team:
Phone: +352 25 22 33-333
Fax: +352 25 22 33-334
The Digital Copyright Exchange idea discussed in the context section may well change the process for securing copyrights belonging to others. Watch this space – we’ll update these notes when there’s more clarity.