Which rights may apply to archival records?
An artistic creative process usually gives rise to copyright protection for the work created. Material kept as part of an archive may therefore also be protected by copyright – as a record of that creative, artistic process. If someone wants to display or reuse the material, now or in the future, it’s important to know when which rights arise and who holds them. The best time to document this properly is when the archive is created. That’s when clear agreements can be made most easily.
The Types of rights tool provides an overview of the different rights that may apply to the archive of an artist or arts organisation. It looks at the various types of documents that may be created and indicates when it’s worth paying particular attention to copyright. There’s also a summary in table form. Bestand:20260626 Welke Rechten In Archiefmateriaal Overzicht.pdf
For every document in your archive or collection that is subject to rights, the question is how to document those rights. Your documentation is the key to knowing the rights status and who holds the rights when a request is made to reuse material, internally or externally. Broadly speaking, there are two ways to do this: on or with the document itself, or in a central overview document. Some physical archival items (e.g. a score or a photographic print) can bear a clear rights notice. For other material (e.g. an audiovisual recording or a set piece), this is less straightforward. Good documentation is therefore essential. One option is to create an overview document for each artistic production and store it in the folder for that production. When new material is created (e.g. compositions or recordings for radio or television), economic rights or related rights are sometimes contractually transferred to a client or producer. Document every transfer of rights carefully in your folder structure by saving contracts and emails that provide evidence.
Music scores
Newly created score
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | composer, arranger, lyricist |
Possible pre-existing rights: If the new score uses existing lyrics, those lyrics may still be protected by copyright. If the new score is a reworking of an existing score, the original score may still be protected by copyright. If composers, arrangers or lyricists have transferred their economic rights to the publisher of the score, the publisher may also exercise the copyright.
Purchased score
| What new right? | Possible rights holder(s) |
|---|---|
| n/a | n/a |
Possible pre-existing rights: The score records the original creative work of composers, arrangers and lyricists. Their work is protected by copyright until 70 years after their death. The score as a whole therefore remains protected until more than 70 years after the death of the last surviving rights holder. If composers, arrangers or lyricists have transferred their economic rights to the publisher of the score, the publisher may also exercise the copyright.
Note: Additional annotations on both newly created and existing scores may be relevant from an archival perspective.
Music recordings
Recording of newly created music for a production
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | composer, arranger, lyricist |
| related rights | performers: singers, musicians |
Existing music recording used in a production
| What new right? | Possible rights holder(s) |
|---|---|
| n/a | n/a |
Possible pre-existing rights: The recording may still be protected by both copyright (composer, arranger, lyricist) and related rights (performers, producer). In that case, it may not be used in a production or made publicly available in an archival context without permission and a licence agreement.
Audio recording of a concert
| What new right? | Possible rights holder(s) |
|---|---|
| n/a | n/a |
Possible pre-existing rights: related rights held by performers such as singers and musicians. If the recording was made by a radio broadcaster or another producer, that producer also holds a related right. This lasts for 50 years after the recording was made, or, if it was made available to the public, for 70 years after its first public release.
Released concert or studio recording
| What new right? | Possible rights holder(s) |
|---|---|
| related rights | performers (singers, musicians) and producer (e.g. record label) |
Possible pre-existing rights: The music performed may still be protected by copyright (composer, arranger, lyricist). Separate permissions are required both to perform it in public and to distribute a recording of that performance.
Visual art
The original creative work of a visual artist is protected by copyright. This also applies to preparatory work such as drawings and sketches. Photographs of artworks may also be protected by copyright. If an artwork appears in the background of a photograph but is clearly not its main subject, the rights status of the artwork in the image is not considered relevant to the rights status of the photograph. The photograph may, of course, still be protected by the photographer’s copyright.
Visual artwork
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | visual artist |
Photograph of a visual artwork (2D)
| What new right? | Possible rights holder(s) |
|---|---|
| n/a | n/a |
Possible pre-existing rights: If the artwork being photographed is still protected by copyright, that protection also applies when it is photographed. A photographer cannot claim new copyright in a faithful photographic reproduction of a 2D artwork.
Photograph of a visual artwork (3D)
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | photographer (if sufficiently original/creative) |
Possible pre-existing rights: If the artwork being photographed is still protected by copyright, that protection also applies when it is photographed.
Note: If a work is created jointly by several artists, there are several copyright holders. The work remains protected by copyright until 70 years after the death of the last surviving artist.
Scenography
Copyright is an intellectual property right. It protects the artistic creation, not its execution. This distinction is important in scenography. The execution of sets, costumes, masks, puppets and so on is not eligible for copyright protection, but the designs are.
Costumes, set pieces, puppets, masks and figures
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | designer(s) |
Costume and set design sketches
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | costume/set designer who made the sketch |
Lighting plans
| What new right? | Possible rights holder(s) |
|---|---|
| n/a | n/a |
Unless it can be shown that a lighting design is an original artistic creation, a lighting plan usually lacks the creativity and originality required for copyright protection.
Models (for set or architectural design)
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | designer(s) |
Note: If a work is created jointly by several artists, there are several copyright holders. The work remains protected by copyright until 70 years after the death of the last surviving artist.
Architecture
See also the section on models above.
Architectural plan
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | architect or architectural firm |
Photograph of a building
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | photographer |
Possible pre-existing rights: If the building being photographed is still protected by copyright (because the architect has been dead for less than 70 years), that protection also applies when the building is photographed.
Note: The copyright exception known as freedom of panorama does allow works protected by copyright that are permanently visible from a public space to be photographed without permission, provided the use of the photographs does not affect the normal commercial exploitation of the work. So you can photograph the façade of a building from a public road without the architect’s permission.
Plays
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | playwright(s) |
Possible pre-existing rights: If the play is an adaptation or translation of an existing text, the original text may still be protected by copyright.
Note: If a text is written jointly by several authors, there are several copyright holders. The work remains protected by copyright until 70 years after the death of the last surviving author.
Dance notation
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | choreographer |
Note: This scenario assumes that the choreographer who creates the choreography is also the person who records it in dance notation.
Notes made during the artistic creative process
Many dramaturgs, actors, directors and others use notebooks to document the artistic process. These notes may, of course, also be digital.
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | author of the notes |
Photographs of concerts, stage productions and rehearsals
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | photographer |
| image rights | person(s) portrayed |
Note: At public performances, performers’ image rights are covered by implied consent. This is not the case at rehearsals.
Audiovisual recordings and trailers of concerts, stage productions and rehearsals
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | videographer |
Possible pre-existing rights: copyright in the text, music or choreography performed and/or in any video or film shown, as well as related rights held by performers (singers, actors, dancers, musicians). If the recording was made by a television broadcaster or another audiovisual producer, that producer also holds a related right. This lasts for 50 years after the recording was made, or, if it was made available to the public, for 50 years after its first public release.
Note: Copyright only arises for the videographer if creative choices have been made (e.g. editing together footage from different camera angles). A single-camera recording therefore does not create new copyright protection.
Communication materials
Communications copy and press releases
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | internal staff member |
Promotional flyers/posters
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | flyer/poster designer (if sufficiently original/creative) |
Possible pre-existing rights: copyright in any existing visual elements used in a poster (e.g. a photograph or drawing).
Programmes
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | writers, translators, creators of visual elements, photographers |
Possible pre-existing rights: copyright in any pre-existing material reproduced in the programme booklet (texts, photographs, etc.)
Note: Employees can transfer their economic rights to their employer through a clause in their employment contract. This gives the organisation greater freedom and legal certainty to continue using copyright-protected material.
Press clippings
Many arts organisations and artists collect press articles about them and their work. Strictly speaking, these are not archival materials, but they do tell us something about how the artistic work was received.
| What new right? | Possible rights holder(s) |
|---|---|
| n/a | n/a |
Possible pre-existing rights: The authors of press articles hold copyright in their articles. Sometimes their economic rights have been transferred to the publisher. Copyright protection lasts until 70 years after the author’s death. This does not in itself prevent artists and arts organisations from collecting press articles and keeping them in print or digital form. Permission is, however, required to make this material publicly available.
Website and visual identity design
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | web designer(s), visual identity designer(s) |
Note: Copyright protection only applies if the work is sufficiently original/creative. The people concerned may have transferred their economic rights to their employer.
New software for an artistic production
| What new right? | Possible rights holder(s) |
|---|---|
| copyright | software developer(s) (internal or external) |
Note: New software written for an artistic production is itself protected by copyright. Economic rights can be transferred by contract. For employees, this can be done through a clause in the employment contract. For external software developers, it must be explicitly included in the agreement covering the commission.
Additions
Do you have suggestions for additions to this list or further questions about this tool? Contact us using the contact form.