Licensing and Copyright: What Every Selling Artist Needs to Know

As artists, we sometimes face the risk of others replicating our work without our permission. This can be a very challenging and disheartening occurrence for artists to deal with. At Jackson’s, we know this experience all too well and appreciate how frustrating it can be. It is very important to know your rights as a creator, and to know how to protect your artistic property from those who may want to copy it or use it without the correct permissions. In this article, Joanne Milmoe of DACS, a not-for-profit organisation that offers guidance on how to protect your rights as an artist and maximise your royalties, explains the basics of copyright and how you can safeguard your artwork from infringement, as well as profit from licensing your work.

Licensing and Copyright: What Every Selling Artist Needs to Know

By Joanne Milmoe

As an artist, creating and selling your work is your livelihood. But once your art leaves your studio, what happens to your rights as its creator? Did you know that selling a physical artwork does not mean you have given away all your legal rights to it. Copyright and licensing are important tools that not only protect your work but also help you generate income long after your work has changed hands.

This guide will walk you through the essentials of copyright, licensing, and new opportunities such as NFTs, so you can sell confidently, protect your legacy, and earn what you deserve.

Understanding Copyright, Your Automatic Shield

Copyright is a legal right that exists automatically the moment you create a work in a tangible form, such as a painting, drawing, photograph, or sculpture. In the UK, you do not need to register your work. Protection begins the moment your idea takes physical shape.

Copyright does not protect ideas in themselves, but it does protect the material expression of those ideas. An ‘idea’ includes the thought that prompted the work, such as the subject matter, or the style in which it was created.

Under copyright law, the creator of a work is considered its author and usually the first copyright owner. If you collaborate with others and your contributions cannot be separated, you all share joint ownership. Copyright typically lasts for your lifetime plus 70 years after your death, ensuring that your estate or heirs can continue benefiting from your work.

Selling Your Artwork Doesn’t Mean Selling Your Copyright

One of the most common misconceptions among artists is that selling an artwork means selling all rights to it. In reality, when you sell a painting, the buyer owns the physical object, but you retain the copyright unless you explicitly transfer it.

Copyright gives you the following exclusive rights:

• The reproduction right (making prints or digital copies)
• The distribution right (issuing copies to the public)
• The rental or lending right
• The right to communicate the work via broadcasting or online sharing

So, even after you have sold an original painting, you could still produce prints, license it for book covers, or use it in merchandise. Unless you have signed a contract giving these rights away, they remain yours.

Be careful with commissions. By default, the copyright still belongs to you, but contracts may include clauses that transfer ownership to the client. Always review commission agreements before signing. Similarly, if you create work as an employee, the copyright usually belongs to the employer.

Income Beyond the Sale

The Artist’s Resale Right (ARR) is an additional right that entitles you to receive a royalty each time your artwork is resold on the secondary market through an auction house, gallery, or dealer. Like copyright, ARR applies for your lifetime and for 70 years after your death, allowing your heirs to continue receiving royalties as your work grows in value.

Licensing is one of the most powerful tools in an artist’s toolkit. It allows you to grant permission for your work to be used while still keeping your copyright. Unlike selling the rights outright, known as assignment, licensing keeps you in control of how, where, and for how long your work can be used.

For example, you might license your work to:

• A publisher for use in a magazine or book cover
• A gallery to produce limited edition prints
• A company to feature on merchandise such as textiles, ceramics, or stationery

Licensing can be structured in many ways. You might charge a flat fee for one-time use, for example, a single book cover. Or set up a royalty system where you receive ongoing payments, for example, from merchandise sales.

When setting fees, consider:

• Placement (front cover vs. inside spread)
• Volume (a small academic print run vs. global distribution)
• Exclusivity (exclusive vs. non-exclusive licensing)
• Duration (one year vs. perpetual use)

With any licensing agreement, be cautious with terms like ‘in perpetuity’ or ‘exclusive use.’ These could limit your future income. If negotiating feels daunting, DACS can help manage such requests, set fair fees, and collect royalties on your behalf.

Protecting your Work from Infringement

Unfortunately, infringement, or unauthorised use of your art, remains a real risk. This could be as blatant as a company printing your painting on T-shirts without permission, or as subtle as someone else copying a distinctive element of your work.

Copyright infringement does not require intent. Even if someone claims they did not know your work was protected, they can still be liable. Courts often look at the similarities, not the differences, between works to determine infringement.

If you suspect infringement:

• Gather evidence such as screenshots, photographs, or records showing unauthorised use.
• Establish a connection to show that the infringer could have accessed your work.
• Seek resolution since issues are often settled by issuing a retrospective licence, meaning you get paid for the use after the fact, rather than pursuing costly legal action.
• Keeping dated records of your work, such as sketches, drafts, or digital files, can be invaluable in proving authorship if disputes arise. And when in doubt, seek specialist legal advice to protect your interests.

NFTs and the Digital Space

In recent years, NFTs (non-fungible tokens) have opened new opportunities for artists, particularly in the digital space. An NFT can be assigned to any digital file, including an image, a video, or a piece of music. It represents ownership of that ‘original’ version. For artists, NFTs offer a way to sell digital works that might otherwise be difficult to market and to connect with a growing audience of collectors.

What makes NFTs especially interesting for artists is the use of smart contracts. These are self-executing agreements coded into the NFT itself, which can automatically pay you royalties each time the NFT is resold. This means that, unlike traditional sales, you could benefit every time your digital work changes hands.
It is important to remember that owning an NFT is not the same as owning copyright. Copyright still applies in the same way as for physical works. Unless you explicitly transfer the copyright through the sale terms, it remains yours.

Be mindful of the standard terms and conditions of NFT marketplaces, which may conflict with your intentions. Always read the fine print, particularly around resale rights and copyright ownership.

You’re Not Alone, There is Support Out There

At DACS, we provide a wealth of free information on our website to help artists understand copyright and make the most of their creative work. We also offer a range of services for artists at different stages of their careers, as well as support for their estates.

There are also a number of organisations that offer free legal support:

• IP Pro Bono: free legal advice and support on intellectual property matters

• Artquest: contact them for advice tailored to artists
• Queen Mary University Legal Advice Centre: offers free legal guidance

For artists selling work, understanding copyright is as important as knowing your materials and techniques. Understanding your rights helps you stay in control of your work, licensing can provide extra income, and being aware of your options helps protect both your career and your creative legacy.

Further Reading

Expert Advice on Licensing Your Artwork

Defending Artists’ Rights In The 21st Century

How to Increase the Financial Value of Your Artwork

Expert Advice on Making Your Way as an Artist

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