Copyright: Artist’s rights and retroactive compensation

By Nicola Dawson

In today’s artistic landscape, the concept of copyright has become increasingly complex. Copyright exists to provide legal framework through which creators are granted exclusive rights to their original works. This allows creators to control how their designs are used, distributed, and reproduced, ensuring that they can protect the unique nature of their designs, whilst also benefitting financially from their creative endeavors. Copyright laws are essential in regulating compensation for artists and for creating guidelines for their adaptation and use. Whilst copyright laws exist to protect artists from the theft or appropriation of their designs, when implemented on larger scales—for example between artists and big companies—sometimes they don’t always act in the best interest of the artist. In 2019, changes to EU copyright law were made in order to allow creators the possibility to seek retroactive compensation for works that have gone on to have unexpected commercial success. This decision marks an increased desire for copyright laws to consider the fair treatment of artists and creators.

There are several factors in how copyright works to protect creators. Firstly, artists can copyright their works in order to secure and maintain exclusive rights, allowing them the sole right to reproduce, distribute copies of, perform or display the work publicly, and to create derivative works based on the original. In the UK, copyright protection is automatically granted to a work, provided it meets the criteria of eligibility, meaning it is original, exists in a fixed and tangible medium of expression, and exhibits a degree of skill, labour, or judgement in its creation. Once obtained, the protection offered by copyright is not eternal. For visual works of art, copyright typically lasts for 70 years after the creator’s death. Not only do copyright laws ensure that artists’ works are protected against imitation, but they also allow the creator to license their works to others who may wish to use them, and to arrange to receive financial compensation in exchange. The fundamental purpose of copyright protection is to prohibit copying as well as to facilitate the fair licensing and subsequent use and adaptation of artists’ works. However, it also has the added benefit of maintaining a balance between protecting artists and promoting the exchange and dissemination of culture, as well as fostering creativity by creating financial incentive. This balance, however, is not always maintained, and in some cases, artists can be subject to exploitation or unfair practice. The creation of new EU laws which allow creators the opportunity to seek retroactive compensation for works they have created and have in turn gone on to have unforeseen commercial success, seeks to rectify this.

Whilst artists are able to license their works to companies who wish to use them in exchange for agreed upon amounts of compensation or royalties, it can sometimes be difficult to negotiate an appropriate amount whilst the ultimate value of the piece and the revenue it might generate for the licensee remains unclear. One artist who plans to take advantage of the new changes in EU regulation is Ann Wolff. Wolff joined the Swedish glass manufacturing company Kosta Boda in 1972 on an individual part-time contract and, during this period, created the iconic snöbollen, a glass candle holder inspired by the appearance of a snowball. With more than 15 million snöbollen having been sold worldwide, the piece has achieved a ubiquitous status within the Nordic household. However, despite the product’s staggering popularity, the time-limited contract Wolff entered into with Kosta Boda in the 1970s means she has not received compensation for her design since the mid-1980s, despite its enduring success.

The snöbollen, designed by Ann Wolff, amazon.co.uk.

Wolff arrived at the final design for the product after a year of experimentation, and although she claims she felt the idea had potential, she never anticipated it would go on to become so successful. As the product amassed popularity, Wolff received 2 per cent in royalties per sale of each snöbollen until, in June 1984, her rights to the work expired and she no longer became eligible to receive royalties. Upon learning about the recent changes to EU copyright law, Wolff decided to pursue retrospective compensation for her design. Wolff initially approached Kosta Boda with a proposal that the unpaid royalties might be used by the company to establish a fellowship for young female glass artists. Kosta Boda rejected this idea and instead offered Wolff a one-time payment of 400,000 kroner (£30,536) as well as her permission to produce the snöbollen in a new range of colours. This time it was Wolff who rejected the offer, stating that altering the colour of the product would clash with her original intention for it to resemble a snowball. According to the estimates of her lawyers, Wolff would have earned between 10 and 15 million kroner (£763,150 - £1,144,725) had she continued to receive 2 per cent royalties on her products. Whilst it is unclear as of yet the conclusion that the two parties might reach, lawyers acting of Wolff’s behalf note that the newly established clause in EU copyright law has highlighted the unfairness of the agreement that Wolff entered into with Kosta Boda in 1972. Others have also noted that since Sweden is so well known for its successful design collectives, a victory for Wolff in this landmark case could trigger any number of similar cases.

The introduction of legislature which allows for creators to seek retrospective compensation demonstrates increased attention to the rights of artists specifically, but also highlights the great potential for miscommunication and unfair exploitation by larger companies. It is not always possible to predict how successful a product or design may become in the future and, whilst increased negotiating power for artists as well as a more clear understanding of how their designs will be utilised by companies would certainly improve the fairness of licensing agreements, the opportunity to seek compensation in the future can rectify deals which have resulted in unfairly low creator compensation. It is also conceivable that this new law could in fact encourage artists to license their works to third parties, knowing that if the deal they strike turns out not to reflect the eventual value of the product, they can seek compensation. This opportunity to rectify past copyright deals reduces the pressure on both parties to decide upon a number which might in turn prove to be inadequate. It remains unclear how this new law will manifest and be used, however it will hopefully serve to promote creativity and the exchange of ideas by giving artists the peace of mind that they will be fairly compensated for their works.