When graphic design work is reproduced, what rights do the people who made this work have? This piece looks at some of the issues, and at what United Kingdom law has to say about them. Reproduction of works of art presents a connected set of issues, and these will be looked at in a following article.
Here is a typical story, some details of which have been changed to preserve anonymity.
We are producing a work of graphic design history, and want to show a couple of spreads from a book published in Germany in 1932. The designer of this book (born in 1897 in Hungary) belonged to the generation of people who were trained as artists, but who became ‘pioneers of modern typography’. Although some of them also made works of art – examples of which can now sell for five-figure US dollar sums – these people wanted to make work for mass production. Some were committed socialists, others were not overtly political but were certainly caught up in the nascent spirit of design: wanting to be useful in the world. The book we will show is an example of this spirit: it was published in an edition of 2,000 copies and sold for the price of a cheap pair of shoes. We assume that the designer was paid a reasonable fee by the publisher (whose firm ceased business in 1933, soon after the Nazi seizure of power). This designer died in New York City in 1973.
The only one of the 2,000 copies of this book that we could find is in the collection of a museum. This museum was able to provide us with the digital pictures that we needed. For this they charged us with their standard price of 50 euro per page, although the book is determinedly designed to work as spreads of two facing pages. In an email informing us about this, they also gave us the address of the designer’s granddaughter. The unstated implication was that we needed her permission before publishing. We wondered whether there should be a payment for copyright for the reproduction. We puzzled over this, thinking that the publisher’s descendants might also be thought to have some say in the matter, and that the book was also made by its writer, and by the illustrator who also contributed, not to mention the long-suffering block-makers and printers.
Stories like this crop up repeatedly in this business of reproducing typography and graphic design. What sums can be charged for what, and why? Many of us seem to work in confusion, guided only by what we have been told by a colleague. What follows is an attempt to discover something about actually existing laws in the United Kingdom. What I write here has, of course, no legal force.
What is graphic design?
The principal piece of legislation that can determine copyright claims in the UK is the Copyright, Designs and Patents Act (1988). A look at the contents page presents us with a problem: are we dealing with ‘artistic works’ [1(1)(4)] or ‘published editions’ [1(1)(8)]. Under ‘artistic works’ we find: ‘a graphic work’, which can include ‘any engraving, etching, lithograph, woodcut or similar work’. This doesn’t seem to describe graphic design, which is typically a collaborative work and whose marks don’t reflect the movement of the designer’s hand, as the marks in an etching or a woodcut characteristically do. As in the German book of 1932, the designer works with a text written by someone else, composed in type by someone else again, and with illustrative elements drawn by yet another person; the whole is then assembled and printed and bound by still others. The designer’s task is to make something with these textual and illustrative elements. So this book is definitely not an artist’s print. The second category in the act’s ‘artistic works’ category is ‘a work of architecture’. We are left with a vague third category: ‘a work of artistic craftsmanship’. This receives no further definition in the act.
Apart from ‘artistic works’ another possible category of work is ‘published editions’: ‘the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works’. The author of a published work – the one who can claim copyright – is given: ‘in the case of the typographical arrangement of a published edition, the publisher’ 1(1)(9)(2)(d)]. And on the duration of this copyright: ‘Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.’ [1(1)(15)]
It is tempting to think that the ‘published edition’ is what we are talking about when we consider graphic and typographic design. It is the publisher who takes the initiative, who brings everyone together, who pays the bills, and who takes the rap if something goes wrong. One might think that the publisher should claim copyright in our book of 1932, at least in the first instance.
‘Typographical arrangement’: a test case
Looking for legal tests and precedents, one can find an interesting case in which copyright in ‘typographical arrangement’ was invoked. In July 2001, an action taken by the Newspaper Licensing Agency Ltd against Marks and Spencer plc went to appeal in the House of Lords. Introducing his judgement, Lord Hoffmann explained the case:
Marks and Spencer subscribes to a press cutting service. It has contracted with an agency called the Broadcast Monitoring Company for the daily supply of photocopies of items of interest appearing in national and daily newspapers. The agency pays a fee for a licence to copy the cuttings to the Newspaper Licensing Agency Limited (‘the NLA’), which deals with copyright licensing on behalf of the newspapers. Marks and Spencer makes further copies of some of the cuttings and distributes them to individuals within its organisation. It has no licence to make these further copies. The question in this appeal is whether making such copies infringes the copyright in the typographical arrangement of the published editions of the newspapers which has been assigned by the publishers to NLA.
Lord Hoffman decided that Marks and Spencer had acted within their rights, and that there was no case to answer. Along the way he explained some of what copyright in typographical arrangement could mean.
Hoffmann explained the background to the ‘typographical arrangement’ idea:
Copyright in a typographical arrangement is of relatively recent origin, having been created by the Copyright Act 1956. It can be traced to two developments in the publishing industry, one of them artistic and the other technological. The first was the great improvement in typographical design which is associated with the arts and crafts movement in the last two decades of the nineteenth century and the first two of the twentieth. A new font could be registered as a design but the typographic layout of a particular book, which may have taken considerable skill and effort, was not as such protected. The second was the development since the First World War of the technique of photo-lithography, which enabled printing plates to be made by photographic means. Publishers were concerned that the skill and labour which had gone into the typographical design of fine editions of classical works (out of literary or musical copyright) could be appropriated by other publishers who used photo-lithography to make facsimile copies.
The first development here, we can summarize as the appearance of the designer in publishing. The second development is the new ease of copying existing editions.
Lord Hoffmann suggested that the second aspect was the principal factor in the introduction of the ‘typographical arrangement’ copyright: to allow book publishers to protect themselves from pirated editions (paragraph 22). He went on to define the what actually could be the subject of copyright.
In the case of a modern newspaper, I think that the skill and labour devoted to typographical arrangement is principally expressed in the overall design. It is not the choice of a particular typeface, the precise number or width of the columns, the breadth of margins and the relationship of headlines and strap lines to the other text, the number of articles on a page and the distribution of photographs and advertisements but the combination of all of these into pages which give the newspaper as a whole its distinctive appearance. In some cases that appearance will depend upon the relationship between the pages; for example, having headlines rather than small advertisements on the front page. Usually, however, it will depend upon the appearance of any given page. But I find it difficult to think of the skill and labour which has gone into the typographical arrangement of a newspaper being expressed in anything less than a full page. The particular fonts, columns, margins and so forth are only, so to speak, the typographical vocabulary in which the arrangement is expressed.
He then explained that what was at issue in this particular judgement was the design of the newspaper, and that copying small portions of any page and arranging that ‘on an A4 sheet’ (as Marks and Spencer had done) did not amount to a copying of the ‘typographical arrangement’. So he dismissed the appeal.
In his remarks, Lord Hoffmann showed unusual sensitivity and understanding for what design is. But his suggestion that the ‘typographical arrangement’ provision was prompted by the new ease of pirating books – as he said, no one will want to pirate a newspaper – lets us think that it does not address the question of photographing or scanning two spreads from a book and publishing these images in another book. The ‘typographical arrangement’ provision was there to stop anyone – at least for 25 years – from copying whole books, from page 1 to page 224, and putting out an edition in many copies.
So we turn to the ‘work of artistic craftsmanship’.
Designer as artist-craftsman, and ‘fair dealing’
The Copyright, Designs and Patents Act (1988) provides that copyright can subsist in a work of ‘artistic craftsmanship’ [1(1)(4)(1)(c )]. But there seems to be nothing further in the act about what a work of artistic craftsmanship could be. The author of such a work is ‘the person who creates it’ [1(1)(9)(1)]. The duration is defined: ‘Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies’ [1(1)(12)(2)].
Supposing that the book from which we want to show pages is a work of artistic craftsmanship and that the ‘author’ is the designer, then we might now have reached our goal. And if this is so, then a book whose designer died in 1973 will, even if that book was published in 1932, still in 2013 be the subject of copyright in its design.
We want to reproduce, in considerably reduced size, four pages from this 224-page book. Our reproductions will be part of a discussion, in which the book of 1932 is explained, described, and assessed. Further, a caption gives a bibliographical description, including measurements of the book’s page size. What guidance can we find?
The owner of the artistic copyright is the only one with rights to make copies [1(2)(16)(1)(a)]. Anyone else wanting to make a copy must have the permission of the author. But here the copying under consideration is of the whole work. We want to copy (in reduced form), and as part of a critical discussion, a small portion of the work.
The Copyright, Designs and Patents Act describes the practice of ‘fair dealing’: ‘Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public’ [1(3)(30)(1)]. But there is no indication in this act of how much of a work can be quoted within a critical discussion.
Turning to the wider legal discussion, one can find some guidance for how much of a text it is permissable to quote in a work of criticism, or how many minutes of another person’s film it is permissable to incorporate into your own documentary film. The wise words of the English judge Lord Denning, speaking at the Court of Appeal in the House of Lords in 1971, are often quoted:
It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.
(Hubbard and another v. Vosper and another)1
One can add here another instance that will occur frequently in any consideration of copyright in graphic design. We want to reproduce not a few pages from a book, but a poster – in which the whole work is represented in one image. Our reproduction will fall within the context of a critical discussion, with the poster fully described and acknowledged. The spirit of ‘fair dealing’ could apply here too. It would be a matter of judgement.
The Copyright, Designs and Patents Act (1988) goes on to devote the whole of its third part to ‘design right’. How is ‘design’ defined here? ‘In this Part “design” means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.’ [3(1)(213)(1)] The Act is clearer about what ‘design’ is not: a method of construction, or surface decoration, among others. [3(1)(213)(6)] And ‘Design right does not subsist unless and until the design has been recorded in a design document or an article has been made to the design.’ [3(1)(213)(6)]
Whether our book of 1932 is a design in this sense is, I believe, doubtful. The description seems to refer much better to an item of industrial design, which is made from detailed drawings and plans. But it is interesting that the duration of design right is defined as follows.
Design right expires –
(a) fifteen years from the end of the calendar year in which the design was first recorded in a design document or an article was first made to the design, whichever first occurred, or
(b) if articles made to the design are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred.
So with ‘design right’ we are not talking about ‘70 years after the death of the author’, but rather something of much shorter duration.
The Berne Convention (1886) regulates international copyright. The first of its three basic principles is as follows:
Works originating in one of the contracting States (that is, works the author of which is a national of such a State or works which were first published in such a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals (principle of ‘national treatment’)
I can summarize these findings. Within our work of history, we are reproducing some pages of a book published in 1932. Does this touch on copyright in the work we want to reproduce?
1. Copyright in its ‘typographical arrangement’ seems not to apply for the reproduction of just a small part of the work. But, if it was held to apply, the copyright lasts for 25 years from publication, and it would belong to the publisher of the book.
2. If copyright here is considered to be a ‘design right’ – though I think this would be stretching the definition too much – then it would last for 15 years and would belong to the designer.
3. The most likely claim for copyright in this designed object is if it is held to be a work of ‘artistic craftsmanship’. Then copyright would belong to the designer and would last for 70 years after the death of the designer. The reproduction of a small portion of the work within a critical discussion would be fair dealing and would not be the subject of copyright.
A book was published recently. You are interested in its design and want to include a few spreads from it in a magazine article that you have been commissioned to write. You get in touch with the designer, who the next day sends you what you want, perhaps even a copy of the book itself. The designer asks you to send a copy of the article when the piece is published – ‘the magazine itself if you can spare one, or just a pdf would do’. Copyright, let alone any payment, is not mentioned and probably not thought about. I imagine that would have been the case in 1932 also. Why do we worry about it now?
- Cyril Vosper, a lapsed Scientologist, published a highly critical book about Scientology, The mind benders. The Scientologists, in the person of L. Ron Hubbard, immediately took out a writ to prevent its publication. They argued that the book breached copyright in its use of quoted material. In his defence Vosper’s lawyers argued that his use of the material was fair. The Law Lords dismissed the Scientologists’ case.