Buying, commission or paying for a piece of artwork does not necessarily transfer this copyright.

This is a key distinction for artists, designer, business or anyone commissioning creative and artistic works. Even if the physical artwork hangs on your wall, sits on your mantelpiece or is digitally stored on your device, the intellectual property right can still belong to somebody else.

Under UK copyright law, governed by the Copyright, Designs and Patents Act 1988 (CDPA), true ownership will depend on how the artwork was created, the relationship between parties, and what has been agreed in the formulation of the work.

This article explains who owns copyright in artwork, the difference between ownership and licensing and how artists, commissioners and collectors alike can protect their interests when entering agreements.

Who owns the copywright in artwork?

As a starting point, the creator of an artistic work will usually be the first owner of copyright in that work.

Section 11(1) of the Copyright, Designs and Patents Act 1988 (CDPA) establishes the general rule that the author of a work is its first copyright owner. This means that when an artist, illustrator, photographer or designer creates an original artistic work, they will usually own the copyright automatically.

Copyright does not need to be registered in the UK before it can exist (explore our guide on protecting your IP abroad for more information). The important point for businesses commissioning creative work is that another party paying for that work does not, by itself, change who owns the copyright.

There are, however, important exceptions.

Who owns artwork created by an employee or freelancer?

The position can be different when artwork is created as part of someone’s employment.

Under section 11(2) of the CDPA, where a “literary, dramatic, musical or artistic work” is created by an employee in the course of their employment, their employer will generally be the first owner of the copyright, subject to any agreement to the contrary.

For example, where an employed designer creates graphics as part of their normal role for the company they work for, the copyright would generally belong to their employer.

Crucially, the same principle does not automatically apply to a freelancer, consultant or external agency.

The Intellectual Property Office explains that somebody working under a contract for services, such as a freelancer or independent contractor, will usually retain copyright in the work they produce unless there is a contractual agreement containing an “IP assignment” or “work for hire” clause to the contrary.

This distinction can become particularly important where businesses outsource significant creative projects to third parties.

Does paying for artwork mean you own the copyright?

One of the most important misconceptions surrounding artwork and copyright is that paying someone to create something means you own everything they produce.

That is not necessarily the case.

Where a business commissions another person or organisation to create a copyright work, the creator will generally be the first legal owner of the copyright, rather than the person who commissioned it, unless they have agreed otherwise.

Consider a business that commissions a freelance designer to create an illustration. The business may have paid the designer’s invoice and received the final files. That does not, on its own, mean that the designer’s copyright has transferred to the business.

Instead, there needs to be clarity over what rights the business is actually acquiring.

That is where the distinction between copyright assignment and copyright licensing becomes particularly important.

Copyright assignment: transferring ownership

A copyright assignment involves transferring ownership of copyright from one party to another.

This is different from simply giving somebody permission to use the work. An assignment can provide for the transfer of copyright ownership itself, whether wholly or partially.

Under section 90(3) of the CDPA, copyright can be transmitted by assignment, and an assignment is not effective unless it is in writing and signed by or on behalf of the assignor.

For businesses, this can be particularly important where the intention is not simply to use an artistic work for a particular campaign or purpose, but to acquire ownership of the intellectual property behind it.

Paying a creator and receiving their work should therefore not be treated as a substitute for properly addressing copyright ownership in the contractual arrangements between the parties.

Copyright licensing: permission to use artwork

Not every business commissioning artwork needs to own the copyright.

It may instead be appropriate for the copyright owner to grant a licence.

A copyright licence allows another party to use a copyright work within agreed parameters without transferring ownership of the copyright itself. The Intellectual Property Office identifies licensing as one of the ways copyright owners can commercially exploit their works.

An agreement might, for example, permit artwork to be used for particular purposes, within an agreed territory or for a defined period.

Licences can also be exclusive, non-exclusive or ‘sole’, where:

• Exclusive licence: can give a licensee exclusive rights within the terms agreed between the parties.
• Non-exclusive licence: allows the copyright owner to continue licensing the work to others.
• Sole license: where the rights holder and the licensee can each exploit the work but no other third-party may be granted an additional license.

The appropriate approach therefore depends on what the parties want to achieve. A business may require extensive rights over a key brand asset, while a creator may prefer to retain copyright and grant rights for particular uses.

What happens if there is no written copyright agreement?

Problems can arise when creative work is commissioned without a contract addressing copyright.

The fact that there is no written licence does not necessarily mean that the commissioner has no right to use the work whatsoever.

The Intellectual Property Office explains that, in some circumstances, the courts may find an implied licence where copyright has not been addressed in the contract. This may allow the commissioner to use the work for the purpose for which it was originally commissioned.

However, that does not necessarily transfer copyright ownership to the commissioner.

Instead, the commissioner may have only a limited, non-exclusive licence.

Relying on an implied licence can therefore create uncertainty, particularly if the way the business wants to use the artwork later changes.

A piece of artwork originally commissioned for one purpose may eventually be considered for different marketing materials, products or channels. Without clearly documented rights, questions can then arise over whether that subsequent use is permitted.

A properly drafted agreement can provide considerably more certainty for both sides from the outset.

What moral rights does an artist retain?

Copyright ownership is not the only intellectual property consideration when dealing with artwork.

UK copyright law, under chapter IV GDPA 1988, also provides creators with moral rights. These protect certain non-economic interests in a creator’s work and are addressed separately from the economic rights associated with copyright.

These include:

• The Paternity Right: The right to be identified as the author or creator of a qualifying work in the circumstances provided for by the CDPA.
• The Integrity Right: The right to object to derogatory treatment of their work.

This distinction matters because moral rights do not operate in exactly the same way as copyright’s economic rights. The Intellectual Property Office states that, unlike economic rights, moral rights cannot be sold or otherwise transferred.

Where appropriate, contracts dealing with creative work should therefore consider moral rights separately from the ownership or licensing of copyright.

Owning artwork vs owning copyright

Owning an artwork and owning the copyright in it are two different things.

If you purchase an original painting, for example, you can own that particular physical painting. That does not mean the copyright in the image has automatically transferred to you.

Copyright gives its owner exclusive rights over certain uses of the work, including rights relating to reproduction and distribution.

As a result, purchasing a physical piece of art does not automatically give the purchaser the right to reproduce the underlying image commercially. such as creating prints, merchandise or other commercial reproductions.

The same issue can arise with digital artwork.

Having possession of an illustration, photograph, graphic or vector file does not necessarily establish ownership of the intellectual property rights contained within that file.

Businesses acquiring or commissioning creative assets should therefore ask two separate questions:

1. What physical or digital asset are we acquiring?
2. What intellectual property rights are we acquiring with it?

Treating those questions as interchangeable can lead to disagreements over how artwork can subsequently be used.

What should an artwork licensing or commission agreement include?

Whether artwork is being commissioned by a business or licensed from an existing copyright owner, putting the agreed position in writing can help both parties understand the extent of their rights.

Depending on the particular arrangement, matters to address may include:

• Scope of use: what can the artwork actually be used for?
• Territory: are rights limited to the UK or available more widely?
• Duration: how long can the artwork be used?
• Media and channels: where can the work appear?
• Exclusivity: is the licence exclusive or non-exclusive?
• Payment: is the creator receiving a flat fee, royalties or another payment structure?
• Moral rights: how will the creator’s moral rights be addressed?
• Dispute resolution: what happens if a disagreement develops?
• Governing law and jurisdiction: which law applies to the agreement and where will disputes be resolved?

The right arrangement will depend upon the artwork, its commercial significance and how it is intended to be used.

What matters is that both parties understand what is being transferred or licensed rather than assuming that payment alone settles the question of copyright ownership.

Practical considerations for businesses and creators

Copyright ownership should ideally be considered before work begins, rather than after a valuable creative asset has already been produced and put into use.

For creators, artists and directors

Understand what rights you own and what a client is asking you to give them.

An outright assignment of copyright is fundamentally different from giving a client defined permission to use your work. Depending on the commercial arrangement, licensing can allow creators to retain ownership while permitting customers to use their work within agreed parameters.

Creators should therefore pay close attention to whether an agreement requires an assignment of copyright or a licence and, where a licence is proposed, precisely what rights it grants.

For businesses, commissioners and collectors

Do not assume that commissioning and paying for creative work means that your business owns the copyright.

This can be particularly important when working with freelance designers, photographers, illustrators, artists and external agencies.

Written agreements should clearly establish whether copyright is being assigned or licensed and, if it is licensed, precisely what the business is permitted to do with the work.

Clarifying this from the outset can reduce the risk of disputes arising later over ownership or the permitted use of an important creative asset.

How Napthens Can Support

Copyright ownership and licensing disputes can arise when the rights of each party have not been clearly defined from the outset, particularly where artwork has been commissioned from a freelancer, designer, artist or external agency.

If a disagreement arises over who owns copyright in artwork or how that work can be used, getting advice at an early stage can help you understand your rights and the options available to you.

Our intellectual property solicitors can advise businesses, creators and individuals on issues including:

• Disputes over the ownership of copyright
• The use of commissioned artwork and other creative works
• Disagreements over the scope or terms of a copyright licence
• Copyright assignments and ownership of intellectual property rights
• The unauthorised reproduction or use of copyrighted work
• Resolving copyright and intellectual property disputes.

Whether you are seeking to protect your rights as a creator or need to understand your position as a business that has commissioned or acquired artwork, we can help you assess your position and determine the appropriate next steps. Get in touch today via our form to speak with an expert.