Response to Call for Evidence
Pro-Action - Visual Artists in Business, was established in 2006 and is a committee and campaigning group representing the interests of professional visual artists. Our aims are to tackle fee erosion, increasingly detrimental contract terms from clients, and copyright issues as they affect visual artists and their representatives. Our member organisations are:
Association of Illustrators_
Society of Artists' Agents_
Association of Photographers
Professional Cartoonists' Organisation_
Pro-Action is chaired by _Robert Lands, Partner at law firm Finers Stephens Innocent, and advised by media lawyer and independent legal advisor Ruth Gladwin
The Association of Illustrators (AOI) was established in 1973 to advance and protect illustrators' rights and is a non-profit making trade association dedicated to its members' professional interests and the promotion of contemporary illustration.
The Association of Photographers Limited (AOP) is a not-for-profit professional trade association, founded in 1968. Its aims are to promote and protect the worth, credibility and standing of its members and to vigorously defend and lobby for the interests and rights of all photographers in the photographic profession.
The Society of Artists Agents (SAA) was formed in 1992 and its member agents represent some of the best available talent in the world. Their broad aim is to promote the use of illustration and to unify and improve the working practices between illustrators, agents and clients.
The Professional Cartoonists Organisation (PCO) is an organisation of exclusively professional UK cartoonists, formed from the amalgamation of two other bodies; The Cartoonists' Guild and FECO UK. They promote cartoon art domestically and internationally by encouraging high standards of artwork and service and look after the interests of cartoonists
Pro-Action's members contribute hugely to the value of the UK's culture, economically and otherwise, creating commercial imagery for a large area of the creative industries across the world. They also sell artwork in print or original form through galleries or other outlets. Moral rights are essential to protect their interests, and are increasingly important in the digital age.
Licensing, as opposed to the assignation of copyright, enables visual artists to control the use of their images whilst being remunerated to enable their businesses to thrive. However, there is abuse of the current system in the UK which tends to benefit larger economic entities. This can discourage creators from entering the market, impact negatively on creative moral and product, and even lead to an inability to continue a professional career. Visual artists and their appointed representatives (agents) are faced with onerous contracts, demands for an assignment of copyright; waiver of moral rights; indemnity to the commissioner for rights the artist cannot control; which are presented as a sign or don't work option and can severely limit the market place for artists to work in.
Major threats which Pro-Action identifies are the increasingly inequitable contract content and contracting practices of companies commissioning creation of new illustrations for commercial use. In addition to this, current UK legislation makes it cost prohibitive for almost all freelance and small SME based illustrators to secure redress via the legal system for copyright and contract infringements.
Pro-Action members organisations, Association of Illustrators and Association of Photographers have submitted responses to the Independent Review of Intellectual Property and Growth, and Pro-Action support these responses. The AOI and AOP responses offer statistical evidence and case studies from artists and agents to support their points, and rather than duplicating that text here, we offer additional case studies from the Professional Cartoonists' Organisation.
The existing copyright framework protects creatives if they are able to access affordable advice, as this example from a PCO member states. Often, however, creatives are unable to access such advice. Licensing work for specific usages through specific companies allowed cartoonist, Bill Stott to challenge unauthorised uses of this work.
I create cartoon books [over 40 titles - around 75% still in print] for a leading international gift book publisher based in the UK. I retain copyright. A few years ago, a major European distributor acting for this UK publisher took one of my books, had a new cover designed, retained all the cartoons but changed the punchlines, printed a substantial number of books and using his established distribution network, put the pirated versions on sale [not in the UK] The discovery was made by chance - a friend travelling in Europe - and I got hold of a pirated copy.
I took legal advice and contacted the publisher, who knew nothing of the pirate activities. The matter was settled without going to law because the distributor was very good at his job. He withdrew all placed pirated books and destroyed them and paid me and the publisher compensation. He didn't lose his distribution job. But he only destroyed the pirated books and gave a written undertaking not to do it again because he feared full legal action under existing copyright legislation and subsequent greater financial loss and damage to his reputation.'
An additional case study:
'In 2010, Bemrose - Booth, a long established UK company, went into administration. For several years I had produced two cartoon calendars per year for them. When I was contacted by the administrators, Bemrose - Booth owed payment for cartoons and had these cartoons in their possession. I asked for either full payment OR return of the cartoons. Neither was forthcoming. A Bemrose Booth spokesperson said that she "couldn't find" the cartoons. Then, days later, it emerged that a new company [composed at executive level of persons who had worked for Bemrose Booth, and called Lockwoods] wanted to produce calendars using the "lost" cartoons, which had been found. At a reduced, and only vaguely promised fee to myself. I refused and continued to ask for the return of the drawings, citing my copyright. Eventually, after many weeks, they were returned.
I then discovered that a 2011 calendar I had designed for Bemrose Booth was being sold by this "new" company. Whilst I had in fact been paid for that calendar by Bemrose Booth, I could find no evidence that the "new" company had paid the administrators and via them the Bemrose Booth shareholders for the calendar. In concert with another competing calender company which had approached me to work for them, I asked Lockwoods to delete said calendar from their sales catalogue. Lockwoods offered me financial inducements not to do this. I refused, and eventually the calendar was deleted. As in all the foregoing, without the fact that I held copyright, the above companies and individuals would have been free to use my work as they pleased. The fact that even with copyright legislation in place, they attempted rip-offs, suggests that without copyright legislation, publishing in hard copy form or on line could become a free for all and my income would be substantially reduced.'
SME/individual creators without funds available to access specialised professional IP advice can find that they are in a vulnerable position when protecting their IP, or when working or negotiating to work with other organisations. This barrier can prevent them from successful exploitation of their IP.