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Other exceptions relevant to artistic works

These circumstances could all be exceptions to copyright: incidental inclusion, public display and art sale advertising.

Incidental inclusion

An artistic work might appear in the background of an image, or in a broadcast or a film. Where the use of the artistic work is incidental - in other words, unplanned – this is covered by an exception. What is considered ‘incidental’ does not depend how big or small the artistic work appears, or if it is in the background or foreground of the image.

What is important is whether the artistic work is integral to the image, broadcast or film. If the use of the artistic work is integral, it will not be incidental.

Certain artistic works on public display

Some artistic works can be photographed, filmed or broadcast when they are permanently located in a public place. This is limited to sculptural works, buildings and works of artistic craftsmanship. It would not include for instance a mural or any type of painting in a public space.

The artistic work must also be permanently situated in the public space. A sculpture temporarily on display in a park will not be covered by this exception, for example.If a person’s photograph, film or broadcast of an artistic work is covered by this exception, they can display it to the public, including online. This exception is explored in more detail in our factsheet on sculpture and works of artistic craftsmanship on permanent public display.

Advertising the sale of artistic works

When an artistic work is offered for sale, an image of the work can be used to advertise the sale in advance. The artistic work cannot be used, however, to advertise something else - such as the sale of another artist’s work - or the sales event itself. To be covered by the exception, the advertisement should contain clear and precise details such as the location and time of the sale.

If an artistic work is used on the front cover of a sales brochure or catalogue it should also contain the sales detail. Cropping, overprinting or manipulation is likely to distract from the fact the work is for sale and the exception may therefore no longer apply. Additionally, cropping and manipulation of an artistic work could amount to an infringement of the artist’s moral rights, namely the right to object to derogatory treatment of their work where it affects their reputation.

The exception no longer applies when the artistic work is sold, so if the advertisement is reproduced or made public after the sale, the exception can’t be relied upon. This exception is specific to the UK and may not exist in other countries. If a sales advert is distributed outside the UK, permission may need to be sought from the artist to use the artistic work in an advert for sale.

Disclaimer

The content of this article is not intended to be applied to individual circumstances. It is not legal advice, and is not a substitute for independent legal advice.

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