Hi All
I've tried to find any information on this on the forum, but apologies if I missed it. I am intending to do some small pen and ink drawings of houses to sell, but I am also thinking about doing some drawings of local pubs and selling those as prints.
My question is fairly simple (hopefully): is there any copyright or other reasons that I couldn't do this? I'm thinking about the building itself, pub signs with their own branding and the pub name itself?
Many thanks
Drawings of Pubs and houses
Re: Drawings of Pubs and houses
Hi strewthBruce,
Looking first just at the buildings, if they are less than about 120 years old there may be be some residual copyright which belongs to the architect for the design of the building (see section 4 (1)(b) of the Copyright Designs and Patents Act 1988). This copyright lasts for the lifetime of the architect plus 70 years following his/her death, hence why around 120 years marks a reasonable cut-off. However, assuming you wish to draw the buildings from life rather than from a photograph taken by someone else, you can do this without infringing the architectual copyright provided that the building stands in public place or can reasonably be seen from a public place. This exception is to be found in Section 62 (2) of CDPA. The reason this exception would not necessarily apply if you used someone else's photograph as your source is that you cannot be sure that the photograph was taken from a public place. For example, say you found a photograph of a stately home which was privately owned. It would be unlikely that the house would be viewable from a public place, say a public road, and so there would be doubt about whether the building 'is on public display'. Furthermore, there may well be copyright in the photograph itself, which would be infringed if you copied a substantial part of it without permission from the photographer. If you have taken the photograph yourself under the conditions of Section 62, then there is no problem if you later use that photograph as the reference for your drawing. If you wanted to use something like the images from Google streetview, you could be reasonably sure that the building was viewable from a public place, although theoretically you would need to obtain permission from Google first.
If you were intending to use old photographs of buildings as your reference, this is possible provided that you are certain that the photograph was made before 1945, as copyright in the photograph will have now lapsed. This is because there are special rules which only apply to early photographs made before 1 August 1989.
You also mentioned signboards outside pubs. These will be protected by copyright as artistic works and thus they fall outside the exception provided by Section 62. As the term of protection for artistic works (including your drawings once they are completed) is the lifetime of the artist plus 70 years, and since most pub signs are likely to have been painted or re-painted in the last 50 years or so, they are highly likely to be in copyright today. However once again there may be a exception which assists you, provided that the signboard is only included as a relatively small detail and is not the main focus of your drawing. This exception can be found in Section 31. Much the same applies to any other artistic work (say like a billboard poster) which you include in an incidental way in any of your drawings. Any trade marks (say something like the logo of a business situated in the exterior of the building your are interested in) will not be infringed by being included in your drawings, because their depiction is not intended to be in the course of trade.
Looking first just at the buildings, if they are less than about 120 years old there may be be some residual copyright which belongs to the architect for the design of the building (see section 4 (1)(b) of the Copyright Designs and Patents Act 1988). This copyright lasts for the lifetime of the architect plus 70 years following his/her death, hence why around 120 years marks a reasonable cut-off. However, assuming you wish to draw the buildings from life rather than from a photograph taken by someone else, you can do this without infringing the architectual copyright provided that the building stands in public place or can reasonably be seen from a public place. This exception is to be found in Section 62 (2) of CDPA. The reason this exception would not necessarily apply if you used someone else's photograph as your source is that you cannot be sure that the photograph was taken from a public place. For example, say you found a photograph of a stately home which was privately owned. It would be unlikely that the house would be viewable from a public place, say a public road, and so there would be doubt about whether the building 'is on public display'. Furthermore, there may well be copyright in the photograph itself, which would be infringed if you copied a substantial part of it without permission from the photographer. If you have taken the photograph yourself under the conditions of Section 62, then there is no problem if you later use that photograph as the reference for your drawing. If you wanted to use something like the images from Google streetview, you could be reasonably sure that the building was viewable from a public place, although theoretically you would need to obtain permission from Google first.
If you were intending to use old photographs of buildings as your reference, this is possible provided that you are certain that the photograph was made before 1945, as copyright in the photograph will have now lapsed. This is because there are special rules which only apply to early photographs made before 1 August 1989.
You also mentioned signboards outside pubs. These will be protected by copyright as artistic works and thus they fall outside the exception provided by Section 62. As the term of protection for artistic works (including your drawings once they are completed) is the lifetime of the artist plus 70 years, and since most pub signs are likely to have been painted or re-painted in the last 50 years or so, they are highly likely to be in copyright today. However once again there may be a exception which assists you, provided that the signboard is only included as a relatively small detail and is not the main focus of your drawing. This exception can be found in Section 31. Much the same applies to any other artistic work (say like a billboard poster) which you include in an incidental way in any of your drawings. Any trade marks (say something like the logo of a business situated in the exterior of the building your are interested in) will not be infringed by being included in your drawings, because their depiction is not intended to be in the course of trade.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
-
strewthBruce
- New Member
- Posts: 3
- Joined: Mon May 18, 2020 1:57 pm
Re: Drawings of Pubs and houses
Hi AndyJ
Many thanks for your reply! That is all very interesting. My intention for the drawings of the pubs is to use my own photographs taken from a public place as reference material when doing these drawings so that means that architectural copyright will not be infringed.
Regarding signage, you are correct these will be incidental as part of the drawing of the building. However, you say that there 'may' be an exception in Section 31. Is this something that you think that they may challenge?
Some of the pubs will be old pubs with fairly old traditional signage, and these probably wouldn't be that interested in what I was doing. However some will be more modern pubs that have invested in building a brand with logos, bespoke signage, etc. Looking at it from their point of view, if I was to sell multiple prints of a drawing, they may feel that I am profiting from their work and expense in creating the look and brand of that pub.
Many thanks
Many thanks for your reply! That is all very interesting. My intention for the drawings of the pubs is to use my own photographs taken from a public place as reference material when doing these drawings so that means that architectural copyright will not be infringed.
Regarding signage, you are correct these will be incidental as part of the drawing of the building. However, you say that there 'may' be an exception in Section 31. Is this something that you think that they may challenge?
Some of the pubs will be old pubs with fairly old traditional signage, and these probably wouldn't be that interested in what I was doing. However some will be more modern pubs that have invested in building a brand with logos, bespoke signage, etc. Looking at it from their point of view, if I was to sell multiple prints of a drawing, they may feel that I am profiting from their work and expense in creating the look and brand of that pub.
Many thanks
Re: Drawings of Pubs and houses
Hi again strewthBruce,
My concern when it comes to the section 31 'defence' is that this is most often applied in the case of sound recordings, films or photographs where it would be difficult to edit out the copyright work concerned, and thus the argument more usually centres on whether the inclusion of the item was deliberate or incidental. Where a drawing is concerned, you as the artist could, in theory, easily leave out something like a pub sign altogether, or substitute a fictitious sign, and so I am less sure how much weight a court might attach to the argument that the inclusion though deliberate was at the same time incidental, presumably on the grounds of artistic integrity or verisimilitude. That said, section 31 does say "Copyright in a work is not infringed by its incidental inclusion in an artistic work, ..." and so I suppose it should apply equally to drawings as it has been found to apply to films and photographs. I am perhaps being too cautious, as I doubt very much if any pub chain or individual landlord would bother about something so relatively trivial.
When it comes to depicting trademarks you are on much safer ground. The central purpose of a trade mark is provide the public with a sort of visual guarantee about the true origin of goods which are being offered for sale. Thus the main protection extends to trade marks which appear on any packaging or directly on the exterior of the goods, or in advertising for the goods. I think it highly unlikely that anyone is going to be misled into believing that your drawings are somehow connected to JD Wetherspoon or any other pub chain based on a small graphic element within a larger picture. If you were particularly risk-averse you could include a disclaimer in any advertising or sales blurb for your drawings, but I really don't think that is necessary.
My concern when it comes to the section 31 'defence' is that this is most often applied in the case of sound recordings, films or photographs where it would be difficult to edit out the copyright work concerned, and thus the argument more usually centres on whether the inclusion of the item was deliberate or incidental. Where a drawing is concerned, you as the artist could, in theory, easily leave out something like a pub sign altogether, or substitute a fictitious sign, and so I am less sure how much weight a court might attach to the argument that the inclusion though deliberate was at the same time incidental, presumably on the grounds of artistic integrity or verisimilitude. That said, section 31 does say "Copyright in a work is not infringed by its incidental inclusion in an artistic work, ..." and so I suppose it should apply equally to drawings as it has been found to apply to films and photographs. I am perhaps being too cautious, as I doubt very much if any pub chain or individual landlord would bother about something so relatively trivial.
When it comes to depicting trademarks you are on much safer ground. The central purpose of a trade mark is provide the public with a sort of visual guarantee about the true origin of goods which are being offered for sale. Thus the main protection extends to trade marks which appear on any packaging or directly on the exterior of the goods, or in advertising for the goods. I think it highly unlikely that anyone is going to be misled into believing that your drawings are somehow connected to JD Wetherspoon or any other pub chain based on a small graphic element within a larger picture. If you were particularly risk-averse you could include a disclaimer in any advertising or sales blurb for your drawings, but I really don't think that is necessary.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
-
strewthBruce
- New Member
- Posts: 3
- Joined: Mon May 18, 2020 1:57 pm
Re: Drawings of Pubs and houses
Hi AndyJ
Again, many thanks for your time and knowledge it is much appreciated. This gives me the information that I need. I think that I will use a bit of artistic licence on any signage, in fact at the moment most of them are fairly small which means you can't really see any detail in them.
Many thanks.
Again, many thanks for your time and knowledge it is much appreciated. This gives me the information that I need. I think that I will use a bit of artistic licence on any signage, in fact at the moment most of them are fairly small which means you can't really see any detail in them.
Many thanks.