Copyright

Artistic Works

Jane Lambert
Last updated 26 Aug 2005

Artistic works include "graphic works", such as paintings, drawings, diagrams, maps, charts, plans, engravings, etchings, lithographs, woodcuts and similar works, as well as photographs, sculpture, collages, buildings and models of buildings and works of artistic craftsmanship. Design drawings are works in which copyright can subsist but in the UK at any rate it is no longer an infringement of such copyright to make an article to the design, to copy an article made to the design, for anything other than another artistic work by virtue of s.51(1) of the Copyright Designs and Patents Act 1988 ("CDPA").

Statutory Definition

S. 4 (1) of the CDPA lists 3 category of artistic works irrespective of artistic quality:

1. graphic works, photographs, sculptures or collages;

2. works of architecture, that is to say buildings (which includes any fixed structure or part of a building or fixed structure by virtue of s. 4 (2)) or models for buildings;

3. works of artistic craftsmanship.

Graphic Works
Graphic works include:

1. paintings, drawings, diagrams, maps, charts and plans and

2. engravings, etchings, lithographs, woodcuts or similar works (s. 4 (2)).

Drawings
Drawings include design documents which are defined by s.51 (3) of the CDPA as

 "any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise."

"Design" is defined by the same sub-section as

"the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration."

These provisions essentially repeat s.263 (1) and s.213 (2) CDPA respectively.
They also include designs of typefaces which includes ornamental motifs used in printing by virtue of by s.178 of the CDPA.

Circuit Drawings
In Mackie Designs Inc v. Behringer Specialised Studio Equipment (UK) Ltd and others [1999] EWHC Ch 252 (22nd February, 1999), Pumfrey J had no doubt that circuit diagrams were artistic works within the meaning of s.4 of the CDPA though he believed that they were also design documents within the meaning of s.51 (3). Jacob J (as he then was) said in Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 that it is possible for both literary and artistic copyright to subsist in the same work but his view was criticised by Laddie J in Electronic Techniques (Anglia) Ltd v Critchley Components Ltd. [1997] FSR 401 at 412.

Computer Generated Graphics

In Lott v JBW & Friends Pty Ltd and another [2000] SASC 3 Mulligan J held that a computer generated arrangement of the words "Opera in the Outback" against a dark background referred to in the judgment as "the graphic bar" was a "drawing" and hence an artistic work within the meaning of s.10 (1) of the Australian federal Copyright Act 1968. In His Honour's view, the choices of the graphic designer as to layout, font, colour and dimensions of each part of the design where the selection was from a computer program is no less creative than in manual drawing.

Photographs

"Photograph" is defined by the same sub-section as "a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film." A "film" is defined by s. 5B (1) as "a recording on any medium from which a moving image may by any means be produced." The definition of a photograph is therefore sufficient to cover any still image produced digitally.

In Creation Records Ltd. v News Group Newspapers Ltd. (1997) The Times 27 April, Lloyd J held that copyright cannot subsist in the choice of subject or the arrangement of the scene for a photograph. The arrangement of the props was neither a sculpture nor a collage. Its composition was intrinsically ephemeral its continued existence being in the form of a photograph.

Sculptures
"Sculpture" includes a cast or model made for purposes of sculpture (s. 4 (2)). The House of Lords held in George Hensher Ltd. v Restawile Upholstery (Lancs) Ltd. [1976] AC 64 that a work of artistic craftsmanship must have artistic merit as well as craftsmanship.

Calligraphy
Although calligraphy is not included within the definition, Conti J of the Federal Court of Australia held in Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd and another [2003] FCA 878 that Chinese calligraphy can be an artistic work within the meaning of s.10 (1) of the Copyright Act 1968. That section is not substantially different from the equivalent provision of the British Act. part of His Honour's decision was not challenged on appeal. In any case, the Full Court dismissed the appeal with costs.

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