Using images in artistic activities
Copyright of an artwork belongs to the creator
In accordance with the Copyright Act, Section 1, the copyright to the material made by a student belongs to the creator, that is the student. In projects that are part of the studies, the teacher has a more pedagogical role and the students do the work. Copyright includes the right to control the reproduction of the work and making it available to the public.
What rights does copyright include?
Copyright includes the author's financial and moral rights. Economic rights include the right to control the reproduction of the work and making it available to the public. The creator's moral rights include rights of attribution and rights of integrity.
In accordance with the rights of attribution, the creator has to be notified in the manner required by proper usage (Copyright Act, Section 3 paragraph 1). The creator has the right to decide on the form in which his / her name is to be expressed and the deviation from this is not generally being considered appropriate. In accordance with the right of integrity, the work must not alter the author’s literary or artistic reputation or individuality in an offensive manner or be made available to the public in a form or context that is offensive to the author.
Important criteria for assessing this provision include the characteristics of the work, the artistic value and significance of the work and the original presentation. For example, the resolution of the Copyright Council 2017: 4 assessed the paintings by Bjarne Melgaard, which resembled Miina Äkkijyrkkä’s famous works with a cow theme. The case concluded that it was a permissible parody.
What are the related rights and how should they be taken into account in artistic activities?
Related rights are defined in Section 5 of the Copyright Act and can be described as being closely related to copyright. These for example are the performing artist and producer protection.
Performing Artist Protection (Section 45)
Protection of a performing artist’s performance – the performance itself does not have to be independent or original. The subject of the presentation, however, must be a literary or artistic work or folklore referred to in Section 1 of the Copyright Act (Harenko, Niirala and Tarkela 2016 p 435). An amateur performance is protected in the same way as a professional one (Committee Report 1987, pp. 27-28). However, the performance should be part of the performing arts. In the WIPO Performances and Phonograms Treaty in Article 2 (a), the performer's activities are described by "acting, singing, interpreting or otherwise presenting literary or artistic works or expressions of folklore" (HE 29/2004, p. 40).
Protection is created for the performing artist. In that case, unless the consent of the artist who performs a literary or artistic work or folklore has been obtained, it is not permitted: 1) to be recorded on a device by means of which the performance can be reproduced, and 2) to be made available to the public on radio or television or by direct communication.
The related rights protection is for 50 years from the year of recording. However, the protection period for a musical recording is 70 years from the year of the recording (Section 46)
Protection of sound record producers (Section 46)
The protection of producers of sound recordings is of a different nature from the copyright protection of a music writer or the related rights of a performing artist. Sound producers’ protection is not the protection of creative work or artistic performance, but rather commercial competition protection. Unlike the creator or the performer, the phonographic producer may also originally be a legal entity such as a company or other organisation. In the Copyright Act, a sound producer is the natural or legal person who first records the sound of a performance. The producer does not have to participate in the actual technical or mechanical production of the recording. It is enough for the producer to bear financial and operational responsibility. The producer is often a record company.
Sound recording
A sound recording may be any recording, but it should only be intended for listening. If the recording contains an image, it is not a sound recording as described in the Copyright Act. No qualitative or substantive requirements have been set for the sound recording. Thus, the sound to be recorded does not have to be a work of art or other object of protection. For example, recording the sound of rain or the humming of insects gives the producer the same right as producing a recording containing a musical performance. However, the requirement is that the subject of the recording must have some audible sound.
Producer of a video recording (Section 46)
The Act regulates the protection of the producer of a movie or other device containing moving images, that is, a film producer. A film producer is the natural or legal person who is financially responsible for the production of image recordings. The film producer's protection does not extend to individual images of the film, but these may be protected as photographic art in accordance with Section 1 or as photographs in accordance with Section 49a of the Act.
The rights include the right to copy the film, to distribute the film or copies thereof to the public and to transmit the film to the public by wire or by wireless so that members of the public have access to the stored material in a place of their own choice, and at the time they have chosen. Film subscription services are subject to the exclusive rights of the film producer as required by Article 3 (2) (c) of the General Data Protection Regulation (GDPR). The filmmaker's protection is valid for 50 years from the year of recording.
Use of Third-Party material in artistic activities
Appropriate Copyright Exceptions
Chapter 2 of the Copyright Act contains limitations of the author's financial rights. Since the author's control is based on the exclusivity of the law, the limitation provisions must be interpreted narrowly. From the principle of the binding nature of contracts, it follows that if the material is acquired for use under certain terms of the contract, these conditions must also be respected in the relationship between the parties to the contract, even when a limitation provision would permit more extensive use of the material (HE 28/2004).
The general conditions for the application of the limitation provisions are laid down in Section 11 of the Copyright Act.Utilisation of the limitation provisions requires that the work to be quoted is made available to the public, that the source and the creator are mentioned in accordance with proper usage, and that the exploiter has legally gained possession of a work or other material. The work has been made available to the public when it has been made public with the permission of the creator, for example, at an exhibition or on an open web page. The requirement of a legal source for example, means that a webpage from which you download the image is such that the image is there with the permission of rights holders. If the image was originally unlawfully loaded to a webpage, copying images is not permitted under the right to use the citations.
Citation, Section 22 of the Copyright Act
According to Section 22 of the Copyright Act, in accordance with proper usage, citing to the extent required by the purpose is permitted.
In addition to the above mentioned general conditions (the contract does not prohibit citation, the cited work has to be public, the name and source must be mentioned, and the source must be legal), the conditions of Section 22 have to be fulfilled. In this case, the borrower does not have to ask the rights holder for permission to use his or her work as part of the borrower's own work, or to pay the rights holder compensation for the use of this work or part thereof. This provision gives you the right to use copyright material in another context as part of a new work. The citation right applies to all types of works; that is to say, under Section 22, you can also cite pictures.
In addition to the general conditions, the citation must meet the requirements of proper usage to the extent necessary for the purpose. The most important requirement for proper usage is that it requires a material connection between borrowable and borrowed works. The requirement of a material connection concerns the relationship between the borrowed and the borrowing work, that is, the purpose for which quotation is permitted. For example, in the ‘Lapualaisooppera’ case (KKO 1971-II-44) a scriptwriter’s aim was to bring out the ideological and social view from another work to be criticised. However, the person had borrowed extensive parts from it, and incorporated it into his / her own new and independent work, without mentioning the work. Acknowledging the difference in the literary form of the works meant that the extent necessary for the purpose had not been exceeded.
In the Copyright Council’s statement 1989:15, there is a mention of an acceptable citation used in a film. In a film about a historical event, in accordance with the citation regulations, it was acceptable to include scenes from a documentary describing that event. In addition, the statement stresses the fact that permitted film citations usually are short flashes from other films lasting a few seconds, and that proper usage demands that the names of the original work and its creator(s) are mentioned. Because of the absence of a referral function and material connection, it is not permissible to create a work composed of quotations only without the rights holder's permission (Harenko, Niirala and Tarkela, Tekijänoikeus, 2016, pp. 203-205).
Other permission such as from the rights holder
If you want to utilise material created by a third party more widely than the citation rights allow, or if the license terms forbid for example, the use of images, you can ask permission from the rights holder, for example by email, or he / she can give permission in an agreement.
A Creative Commons license allows the user to choose which user rights to give the work. The extent of the license agreement and the usage it allows are expressed by the licence’s name and logo. These, in turn, are linked to the licence’s specific legal content and description of permitted usage. In this way, it has been possible to define the usage permitted by the license both in a way that is easy to understand, and is exact. It is also possible to make variations of material with a CC-BY-license.
When an artistic production is done in cooperation it is essential that all the participants, the students, the higher education institution and possible partners, agree about the copyright. For example, the University of the Arts Helsinki uses the following agreement, through which students grant access to the work or presentation included in their studies. You can find model contract examples here.
Every person who undertakes creative work or takes part in performing creative work has rights under the Copyright Act. For example, a videotaped musical theatrical presentation creates copyright for a scriptwriter, a choreographer, a dramaturge who edited the work, a composer who wrote the music, a set designer who planned the original scenery for the work, a costume designer who planned the independent and original costumes and the person who created the independent and original lighting. In addition to this, related rights are credited to the work’s performers, musicians and actors. A photographer and video photographer will gain related rights for photographers or copyright to the photo- or video film. However, the copyright concerns only the images they have taken themselves, and they cannot use the copyright without permission from the persons in the picture. If the work is made into a poster, a programme or other marketing material by a graphic designer, he / she may also have copyright to the work he / she has created. The higher education institution acting as a video producer will be granted an independent producer’s related rights. In order to be able to film, present and market a video, the higher education institution must have permission from all the rights holders involved in the making of the work.
For the using, communicating and marketing of a work made by one person, the higher education institution needs copyright. Copyright is a separate question from who owns a physical artwork such as a painting. According to a decision of the Copyright Council, despite the fact that the ownership of copyright is retained by a student, the ownership of physical material remains with the higher education institution that acquired the material.
The fact that various social media services have become the distribution channel for works, such as YouTube for videos, forms a special challenge for agreeing on copyright. For example, in order to be able to show a video on the university YouTube channel, there has to be such a broad user agreement that it is possible to use YouTube. Broad agreement also allows each student to be able to put parts of the presentation or the whole presentation into their own digital portfolio, which presents their own skills. The above-mentioned example agreement is not so extensive that it would allow the use of social media terms.
The author's financial rights and moral rights include changing the work. Financial rights provide the exclusive right to control a work by reproducing it and by making it available to the public, in the original form or in an altered form, in translation or in adaptation, in another literary or artistic form, or by any other technique. (The Copyright Act always requires the right to change to be explicitly agreed upon. If the change is not authorised, the work may not be changed. However, it is possible to make a new, independent, original work, such as a painting, drawing or play when an earlier work has been used as a starting point or inspiration. No one creates a work in a vacuum, but the artists are influenced by other artists’ and others’ works. The plot and ideas from previous works can be used freely, because they are not covered by copyright. The question of changes that are allowed can emerge in practice, for example, in the case of parodies, the use of data content, and various conceptual and format-related phenomena.
The problem with the production of all digital work and changing such digital work is that if the work was not made for private use, it is necessary to get permission from the outset from the original creator to use the work.
For example, in the Copyright Council's statement 2017: 4, a parody was considered to be a free variation. In this case, according to the Council, B’s use of works in another context and for another purpose differed from M's works. This reflects B's characteristic way of combining provocative and controversial elements with familiar characters. Despite some minor changes, new and independent works have been created. B's works can thus be considered as a parody of the works in question and their animal characters created by M.
Copyright protects not only entire literary and artistic works, but also parts of a work. This should be taken into account, for example, when collages are made. Thus, for example, the detail of a painting or a paragraph or smaller part of a novel may have protection under Section 1 of the Act. Only those parts of the work which are, in themselves or in isolation from the whole, independent and original, so that they reach the threshold of originality, can be protected. If this limitation was not made, a single word or character in a novel would be protected and exclusive because it is part of a broader artistic or literary whole. This would lead to protecting trivial details and data contents of presentations and that would not be in accordance with the social and cultural objectives underlying copyright.
Parts of the work may be utilised under Section 22 of the Copyright Act if the criteria of the provision are met. Openly published images may be used in collages, but note that the No-Derivatives condition prohibits the use of a work in collages. If the work that is being utilised is CC-licensed (for example, CC BY), which allows the work to be edited, no separate license is required. If you create a collage of CC-BY-licensed images, you can also download the work to social media
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