Who owns the work: copyright, moral rights and the right to photograph it
Copyright in a commissioned artwork stays with the artist, not with whoever paid for it, unless it is assigned in writing and signed. Paying for a public artwork buys the object; it does not buy the right to reproduce, adapt or merchandise the work unless the agreement says so. That default catches out most first-time commissioners. This page describes how the rights are normally allocated in UK practice. It does not give legal advice, and a rights clause with real money behind it should be checked by someone qualified.
Who owns copyright in a commissioned work
Ownership of copyright follows authorship. Under the Copyright, Designs and Patents Act 1988 the first owner of an artistic work is the person who made it, the only routine exception being a work made by an employee in the course of employment. An artist on a commission is a contractor, so the artist is first owner, and copyright lasts for the artist’s life plus seventy years from the end of the year of death.
Two consequences follow.
- Buying the physical work transfers the object, not the copyright. They are separate property and move separately.
- Transferring copyright requires an assignment in writing signed by or on behalf of the assignor, so an agent or an estate can sign for the artist. A verbal agreement or a line in a brief is unlikely to do it, though an informal paid-for arrangement can still leave a commissioner with an implied licence rather than ownership.
Older works can sit under earlier rules; anything commissioned now belongs to the artist unless the paperwork says otherwise.
Assignment or licence: what a commissioner actually needs
Assignment and licence are the two ways a commissioner gets rights, and in public art the licence is almost always right. An assignment hands copyright over permanently and the artist loses use of their own design elsewhere. A licence grants specified uses while ownership stays put, and is only as good as its five parameters, any one of which gets argued about later if omitted.
| Parameter | What to settle | Typical position on a public commission |
|---|---|---|
| Purpose | Which uses are permitted | Documentation, publicity, education, the commissioner’s website |
| Exclusivity | Whether the artist can license the same uses elsewhere | Non-exclusive, so the artist keeps portfolio and press use |
| Territory and term | Where, and for how long | Worldwide, for the work’s life |
| Sub-licensing | Whether third parties can be passed the right | Permitted to photographers, publishers and tenants |
| Commercial use | Whether the work can appear on goods sold for profit | Excluded, and priced separately if wanted |
Commercial use is the parameter that carries a price. An image on a tote bag, a print run sold in a shop or an advertising campaign is a different thing from a newsletter, and is handled either as a separate licence negotiated when the use arises or as a named extension with a fee attached. There is no standard UK rate: the fee follows what the use is worth, over what term and at what scale.
Moral rights, and how they behave outdoors
Moral rights are separate from copyright, belong to the artist personally and cannot be sold. Two matter on a public commission, both under the Copyright, Designs and Patents Act 1988. The right to be identified as the author has to be asserted in writing to take effect, which is why agreements contain one. The right to object to derogatory treatment covers addition, deletion, alteration or adaptation amounting to distortion or mutilation, or otherwise prejudicial to the artist’s honour or reputation.
Unlike copyright, moral rights in the UK can be waived in writing, and commissioners sometimes ask for a waiver. An artist asked to sign one is entitled to ask what problem it solves, because the honest answer is usually fear of the maintenance regime rather than a plan to alter the work, better handled by writing the regime down.
Outdoors, three situations test the right to object.
- Weathering is not treatment. A bronze that dulls, a weathering steel surface that develops its oxide layer, a timber element that greys: nobody has done anything to the work.
- Cleaning can be treatment, if done wrongly. Abrasive cleaning that removes a patina, a pressure wash that lifts a coating, or repainting a mural in different colours are alterations to the work itself, and the realistic risk. The remedy is procedural: a maintenance manual at handover and a named contact asked before anything unusual is done.
- Moving or removing the work generally sits outside the right, which addresses treatment rather than location. It may still breach the agreement, which is why that needs a term and removal clause and a duty to notify the artist.
Photographing a work in a public place
Photographing a sculpture permanently sited in a public place is not an infringement of copyright in the UK, and the photograph can be published commercially. The Copyright, Designs and Patents Act 1988 contains an exception, commonly called freedom of panorama, covering buildings and any sculpture or work of artistic craftsmanship permanently situated in a public place or premises open to the public. The photographer owns copyright in the photograph.
The limits of that exception are where the arguments are, and there are three.
- It covers three-dimensional work. A mural or printed graphic work on a wall is neither a sculpture nor a work of artistic craftsmanship, so publishing a photograph of it commercially is not covered.
- It requires permanent siting in a public place or premises open to the public: a temporary installation, or a work in a private courtyard, falls outside it.
- It does not override the landowner, who can control photography on their land as a condition of entry. That is access rather than copyright, and why a shopping centre can stop a photographer.
For a commissioner the exception is a floor, not a substitute for a licence: it does not permit reproducing the artist’s drawings or putting a mural on merchandise.
The Artist’s Resale Right, and when it applies
The Artist’s Resale Right is almost never relevant to a public art commission, because it applies to resales rather than first sales. It entitles a living artist, or their heirs within the copyright term, to a royalty when an original work is resold through an art market professional such as an auction house or dealer. It bites on qualifying resales at or above a threshold and runs on a sliding scale starting at four per cent, with an overall cap per sale. Threshold, bands and cap are set in pounds sterling: the euro amounts the right inherited from EU law were converted to sterling from April 2024, so guidance still quoting euros is out of date.
None of that touches the commission itself. Paying an artist to make a new work is a first transaction and carries no resale royalty, and a sculpture bolted to a foundation in a town square is never resold. The right becomes live only where the commission produces a saleable object that later changes hands through the trade: a maquette sold on, a limited edition cast from the same moulds, a design drawing that reaches a saleroom. An agreement anticipating any of those should say who owns them.