In the UK, there are a number of ‘fair dealing’ exceptions to copyright law, which means that certain uses of an artistic work do not require permission from the copyright owner so long as the use is considered to be ‘fair’. 

The general rule is that reproducing an artistic work without the permission of the copyright owner amounts to copyright infringement, unless an exception to copyright applies. Some of the exceptions to copyright require a two-step approach - that the work is used for a specific purpose and that the work has been dealt with in a fair way – hence, they are known as the ‘fair dealing’ exceptions. 

Step One: What purpose is the artistic work used for?  

An exception to copyright can apply where an artistic work is used for a very specific purpose. There is no general rule on how the exceptions apply, so each purpose should be examined in turn – for instance the exception to copyright for the purpose of reporting current events does not apply to photographs, but it does apply to other artistic works.
The ‘fair dealing’ criteria will apply to uses of artistic works that are for the following purposes and which are explained in our general factsheet on copyright exceptions.

Step Two: How is fairness assessed? 

Fair dealing means that the artistic work has to be used in a way which is considered fair, but ‘fairness’ is not defined by the law. Instead, the courts have determined what conditions are to be considered to deciding what is fair.
What does ‘dealing’ mean?

‘Dealing’ in the context of copyright exceptions simply means someone is making use of an artistic work in a copyright relevant way. It does not need to be a transaction or something done for money, but must be for one the purposes stated above.
How much is being used?

When assessing fairness, it is important to consider the quality and the quantity of the artistic work that is being used.
Is the artistic work available?

If an artistic work has never been made available to the public, i.e. in an exhibition or reproduced in print in any manner, it is less likely to be a fair dealing for someone to use the artistic work. Additionally, if an artistic work has not been legitimately obtained, for instance stolen or through unauthorised access (physically or digitally), dealing with that artistic work would not be fair.
For two particular exceptions, it is mandatory that the artistic work was made publicly available for the exception to apply. These are the exception for criticism and review and the exception covering instruction or examination.
How will the artistic work be used?

It is less likely to be a fair dealing of an artistic work if a use interferes with its ‘normal exploitation’. For example, if the person using an artistic work under an exception does so in a way that would prevent an artist from using that same work themselves, it is less likely considered to be fair.
Fairness may also depend on whether the artistic work has been changed, or whether it is used unaltered. This will depend on the type of use and so fairness should be assessed on a case by case basis. For example, if using an artistic work for the purpose of reporting a current event, instruction or examination, it is less likely to be fair to alter the artistic work as part of the use.
On the other hand, parodies, pastiche and caricatures tend to be adaptations of an original concept, therefore it is more likely that fair dealing for these purposes would apply where the artistic work has been re-contextualised.
Considering consequences on the artist

An important principle of international copyright treaties is that copyright exceptions do not interfere with the legitimate interests of the creator of an artistic work. This means that the creator should not be prevented from licensing their copyright for a specific purpose, or receive remuneration for a use of their work.
Financial motivation?

If a person or company using an artistic work is motivated by making a profit, it is less likely that a fair dealing exception would apply. For example, where a company is selling publications that use an artistic work under an exception such as criticism and review, fairness will less likely be established if the company is making a large profit from the sales.
Non-commercial companies can also carry out profit-making activity – for instance an educational institution or a charity may sell books or merchandise.
Alternatives to the use?

If the use of an artistic work produces an effect that could be achieved by different means, this may also impact the assessment of fair dealing. For example, if an image is used by a newspaper for the purpose of criticism but in a situation where a description would have sufficed, this use would not be considered fair.
Sufficient acknowledgement

If an artistic work is used under the criticism and review exception or the exception for reporting current events, it must be accompanied by sufficient acknowledgement – unless the reporting of current events is by broadcast and it’s not possible to make an acknowledgment. See more on this topic in the general factsheet on copyright exceptions.

Making the assessment 

An assessment of whether the use of an artistic work for a specific purpose is ‘fair’ is not black and white, but rather a spectrum of grey. The factors listed for step two may not always apply depending on the situation, and nor is it an exhaustive list. However, it is unlikely that the factors for what is considered ‘fair’ should be looked at in isolation: when examining ‘fair dealing’ in a court of law, a judge would look at all the circumstances of a particular case to make an assessment.

Disclaimer: This factsheet is offered as a general guide to the issues surrounding copyright in this area. It does not represent an exhaustive account. It is not intended to offer legal advice and should not be relied upon as such. We strongly recommend you seek specialist advice for any specific circumstances.