Using third party copyright material in exhibitions: key considerations

We know from speaking to our cultural and art institution clients just how hard exhibition teams work on clearance issues – it is not just a matter of law but a matter of professional integrity that goes to the heart of an institution’s reputation. Navigating copyright clearances may be a routine aspect of operations for cultural organisations, but it can be complicated. This article aims to demystify some of the essential legal considerations when using third party copyright material in an exhibition.

Is there copyright in the work?

In the UK, the Copyright, Designs and Patents Act 1988 (the CDPA) protects a wide range of “original” works, including but not limited to books, photographs, films, sound recordings, graphics, computer programs, and translations. There are exceptions but, generally, copyright expires 70 years after the creator’s death and until that point we typically refer to the work being “in copyright”.

If a work is not copyright protected (for example if the copyright has expired), it may be used freely, subject to other intellectual property rights or contractual restrictions. However, if the work is copyright protected, the copyright owner retains exclusive rights to copy, distribute, translate, perform, or communicate the work. Using it without permission, unless a permitted exception applies, is likely to amount to infringement.

Should you obtain a licence?

If you want to reproduce a copyright work wholesale as part of your exhibition (or in related exhibition-adjacent materials, such as the website, on social media, in catalogues and on merchandise), you will most likely need a licence from the copyright owner to do this – nothing new here.

A more common question that our clients ask us is: at what point do I need a licence when adapting or drawing inspiration from a copyright work? Or, when does “inspired by” cross the line into “infringement”? For example, if the graphics team looks at a series of artist interpretations of a topic for inspiration to produce their own “version” for the poster for an exhibition. The answer is that it is a matter of degree but, for there to be copyright infringement, there must be a causal connection between the original work and the alleged infringing work. Simply bearing similarities to another work is not enough. There must be evidence of actual copying, and what is copied must be the whole or a substantial part of the original work. The term "substantial" is determined by reference to quality, not just quantity. Even a small part of a work could be considered substantial if it is the critical element of the work. If the “overall impression” of the original work and the new work is the same, even if the detail is different, then this could still amount to infringement (and, almost inevitably, it will always depend on the facts in each case as to whether there is actually an infringement).

However, it is by no means a rule, but generally the more flagrant the copying and the more important the original work, the higher the likelihood that the rights owner will take issue with the copying. Additionally, the greater the potential for the alleged infringer to profit from the perceived infringement, the more likely for it to come to the attention of the rights owner and become contentious.

If the proposed use does not fall within the permitted exceptions (on which see below), and there is a possible infringement risk, cultural organisations would normally be best advised (both legally and reputationally speaking) to seek a licence from the rights owner. When securing a licence to use the copyright work, it is crucial to consider carefully the scope of the licence, as this will determine what the licensee can and cannot do with the copyright protected work.

Orphan work

When seeking to reproduce a copyrighted work (ie, one that is still “in copyright”), the first step is always to identify and locate the copyright owner, a process known as a “diligent search.” However, what happens if, despite all efforts, the copyright owner remains untraceable? Such works are referred to as “orphan works.” Despite the challenges in obtaining permission, orphan works remain protected by copyright.

To mitigate the risk of infringement, cultural organisations may apply for an orphan works licence. The UK Intellectual Property Office may grant a non-exclusive licence to use an orphan work for up to seven years at a time. If the copyright owner makes themselves known during the licence period, the licensee is protected from infringement claims. If a licence is not granted, then use of the orphan work will inevitably carry some risk and an appraisal of that risk, together with relevant mitigations, may lead to a decision to “proceed with caution”, or it may not. The point is that a risk-based approach could be countenanced.

Digital reproductions of out-of-copyright work

Cultural organisations often regulate and sometimes monetise the use of high quality digital images of artworks that are no longer protected by copyright. If another organisation wishes to use one of these digital images in its own exhibition, it should be mindful of both the licence terms that the digital image is made available under and also the copyright infringement risk of using the digital image without the owner’s permission. While the copyright in the underlying work has expired, it is still very much possible (in our view) for copyright to subsist in, for example, a hi-res digital image of the out-of-copyright work. For example if the image has been prepared and shot by a professional using specific lighting and shadow, colour/pixel manipulation, etc to capture the very best possible reproduction of the original work to such an extent that this itself merits protection of the image as a new copyright work. For copyright to subsist in a work, it must meet the “originality threshold”. This requirement gained significant attention following the Court of Appeal's decision in THJ v Sheridan, which confirmed that the correct test for originality is whether the work is the “author’s own intellectual creation.”

The Sheridan decision sparked discussions concerning whether museums and galleries can assert copyright over 2D reproductions of out-of-copyright works. Our take on the case is that, provided these 2D reproductions meet the originality threshold, they are indeed protected by copyright. As a result, third-party organisations copying these digital reproductions for any purpose without permission will be at risk of copyright infringement (unless the use falls into one of the permitted exceptions, expanded on below).

For a deeper dive into what this judgment means for cultural organisations, you can read our more detailed article here.

Fair dealing exception

If the third-party work is copyright protected, it may still be possible for you to use it or part of it in an exhibition without permission under certain very specific circumstances. In the UK, ’fair dealing’ is a defence or “exception” to copyright infringement. The CDPA permits fair dealing with certain types of copyright work in certain situations. There is no statutory definition of fair dealing, and the case law is relatively limited. As such, its application will always be a matter of fact, degree and impression in each case.

The most relevant categories of fair dealing for exhibition teams are likely to be:

Criticism and review: If cultural organisations wish to use a third-party copyright work in an exhibition for the specific purpose of criticising and reviewing it, this might be permissible under the CDPA provided that the use is still fair. For example, using a small copy of an artistic work in an exhibition may be acceptable without a licence if the surrounding explanatory text or the exhibition more generally is clearly criticising and reviewing the artwork. Taking more from the copyright protected artwork than is necessary to make the relevant points of criticism and review may be unfair, as would cannibalising the copyright owner’s opportunity to exploit the work themselves. For example, if the exhibition featured a very large and high-resolution copy of the work as the focal point of the exhibition: this use is very unlikely to be fair even if there is supporting criticism and review of it, and should be done under licence.

Quotation: Quoting from a work may not infringe copyright, provided that the use is “fair”. For example, using excerpts from a copyright protected letter in an exhibition may be acceptable if no more of the letter (in terms of quality and quantity) is taken than is absolutely necessary to make the relevant point, and the use does not unfairly prejudice the rights holder.

It is important to note that, in both instances, the work in question must already be made publicly available and must be accompanied by a sufficient acknowledgement.

Other exemptions

Additional relevant exemptions for cultural organisations include:

• Helping disabled people:Organisations are permitted to communicate, make available, distribute and lend accessible format copies (eg braille copies) of copyright works for the benefit of disabled individuals.
• Libraries and archives:Libraries and archives can use copyright-protected works for some specific purposes, such as providing access via dedicated terminals, preserving collections, and replacing lost or damaged items.
• Educational uses: Educational exceptions to copyright infringement are really designed for schools and universities, but cultural organisations, if acting in their capacity as educational establishments, may sometimes be permitted to use copyright work, such as illustration in instructions, subject to certain limitations. For instance, they may copy no more than 5% of a work annually. It will depend on the facts in each case.

Conclusion

Copyright law can often be complex and nuanced, with many grey areas to navigate. That said, for exhibition teams (and those with clearance responsibilities specifically), a sensible, common-sense approach, combined with appropriate legal advice, is often the key to mitigating the risks of infringement. Ensuring that appropriate permissions are sought and understanding when exceptions may apply can help cultural organisations steer clear of legal pitfalls and result in quality, reputation-enhancing exhibitions.

With thanks to Arisa Terada, a current trainee in the team, for her help preparing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2024