Copyright Moral Rights

Creator or Buyer: Who Really Owns the Art?

Paul Klee
Paul Klee

When we purchase an item, whether it’s a blender, a car, or a really cool toboggan for snowmageddon races, the purchaser owns what the bought and can modify it to their heart’s content.  Buying an artistic work, on the other hand and the ownership is joint, with some right going to the buyer while others are retained by the work’s creator. Whether the purchase is an original oil painting or a corporate logo, ownership rights are not the same as owning a toboggan, even if it is handmade from ancient oak found in the forests of Valhalla.

As you can imagine, many lawsuits are fought over ownership right for artistic works and other intellectual property, many of which would not have happened had the parties known the basic rules surrounding IP ownership.   Although every case is unique and requires a thorough analysis (that why we have lawyers after all), looking at a few hypothetical scenarios, should help us map but some of the boundaries of ownership rights when purchasing visual art. Imagine the following situation:

  • A wealthy executive purchases an oil painting from a living artist to be the centerpiece of his private library. After hanging the work, he feels he may have made a mistake in purchasing the painting, but thinks that if he cuts it into three smaller pieces, it might look better in the room.
  • After some negative reaction to his idea, the executive instead decides it would be better just to sell it and consigns it to a reputable gallery for the sale.
  • Before the gallery takes possession of the oil painting, a major fashion magazine rents the executive’s home for a photo shoot. The photographer uses the private library as the main setting and the oil painting is shown in the background of several photos, which the magazine publishes in its next issue.
  • Impressed with the photographer’s work, the executive commissions her to shoot his home. A couple of years later, the executive puts the home on the market and gives the photos to his real estate agent to use in the listing. The agent’s brokerage posts the photos on its site and also u0loads them to a Multiple Listing Service.
  • The brokerage is in the midst of a branding redesign including a new website. The company hires several freelancers to create the new designs, including some amazing drawings of streets in the area, which the company uses, along with photos of the executive’s home on its homepage.
  • The Brokerage also makes large posters of the drawings that it sells on its website.

The purchaser in each of these scenarios may be infringing on the rights of the artist or creator.   Let’s look at each scenario and see what the purchaser may have done wrong and whether there are any defenses to get them out of trouble.

VARA and the Alteration or Destruction of Visual Art

In our first scenario, our wealthy executive buys an oil painting, which he wants to cut into three sections to hang separately. Can he do this? Until 1990, there would be little question. Anyone who purchased an original work of art could change it, including removing sections or adding other art to it. The purchaser could even destroy the work, as long as his or her actions didn’t infringe on the artist’s copyright.

Under Copyright Law, a copyright holder has the exclusive right to:

Copyrigtht for the creator of art

However, nothing the Copyright Act prohibited the purchaser from altering or destroying the physical work. Many countries around the world, however, prevented alteration and destruction of artistic works, giving artists the “moral right” to protect their creations. Moral rights gave the creator control the eventual fate of his or her artistic work, along with protecting the artist’s reputation. Moral rights included the creator’s right to receive credit for a work, prevent a work from being altered without permission, control over who owns the work and the manner in which it is displayed, and to receive resale royalties.

After the United States had signed onto Berne Convention, the international agreement governing copyright, Congress enacted Visual Artists Rights Act of 1990 (VARA). However, VARA is a bit more limited than most other countries. It grants two rights to authors of visual works: the right to prevent intentional distortion, mutilation or other modification of the work which would be prejudicial to his or her honor or reputation; and the right to prevent the destruction of a work of “recognized stature.” Note the difference in these two conditions. In the first condition, the mutilation or intentional distortion must be prejudicial to his or her honor or reputation. Otherwise, the alterations are allowed. Destruction, however, is different. Harm to the creator’s reputation is not required, however, the work must be of a “recognized stature.” These requirements can be very subjective and hard to prove, which is one of the reasons very few VARA cases have made it through the courts.

VARA has other limitations as well. It applies only to a “work of visual art,” which the statute designates as paintings, drawings, prints, sculptures, and photographs, of a recognized stature, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. Photographs must have been taken for exhibition purposes only. Posters, maps, globes, motion pictures, electronic publications, and applied art are explicitly excluded from VARA protection. Finally, for works created on or after 1990, protection expires with the death of the author but for works created before VARA was enacted receive VARA protection until the copyright ends, which is life of the author plus 70 years. Also, VARA rights cannot be transferred but can be waived if the author expressly agrees to waiver in a signed written instrument with the required specificity.

Visual Art in 5Pointz, Brooklyn
The Street Artists in 5Pointz Brooklyn lost their battle to preserve their artwork.

So given these rules, can the Executive in our scenario cut up the oil painting into three pieces if the artist didn’t want him to do so? Well, the painting is a work of visual art created recently, and the creator is still alive, so the situation does fall within VARA. But does it fulfill one of the two prongs? In order for the artist to prevent the executive’s action, he would have to show that the mutilation harmed his reputation. That is not easy to do, in this case. It is not as if the executive wrote derogatory remarks about the artist all over the painting. Alternatively, the artist could claim that the alteration is in fact destruction of the work. He would then need to show that the work was of a significant stature. Being a famous artist, that would be easy. The stature question becomes murkier if the artist were only mildly well-known in certain circles or geographic locations. So the artist, in this case, may have a good shot at protecting the work.

Inherent Rights in Buying Visual Art

The executive has decided not to alter the painting but instead re-sell it at a gallery. Does the Executive have any limitations as to how, where, or with whom he sells the work? Does the gallery have any limitations?

Unlike many other countries, VARA only provided for limited moral rights. An artist cannot decide where or to whom a painting is resold. However, artists do have the right of attribution under VARA, which allows them to claim or deny that he or she is the creator. If the creator doesn’t like where the work is being shown, the artists can keep the seller from using his or her name in relation to the work. That is actually a very strong right to a potentially lucrative sale would become much less so if the work were considered “anonymous.” In my last article on Sotheby’s and the Caravaggio, that distinction may have cost the owner about $10 million.

What rights do each of the parties have in reselling a work? The artist holds the copyright, and thus, the exclusive rights that go with it, as mentioned earlier. The copyright holder can transfer those rights to another person or entity, in whole or in part, for whatever duration the creator desires. The conveyance of those rights are generally done through contracts or licensing agreements, which delineate which rights are being transferred, who receives them, the scope of the rights being conveyed, and the duration of the conveyance. A good contract should include sufficient detail regarding the boundaries of the rights being conveyed to limit any misunderstanding that might lead to a lawsuit.

What is often harder to determine are the boundaries of inherent rights, which are those rights needed in order to fulfill the terms of the agreement.

Street Art Creator AholSniffs Glue
AholSniffsGlue recently settled a copyright infringement case with American Eagle for using his work without permission in the background of a series of photos fused or the company’s ad campaign.

To illustrate this point, let’s look at the scenarios mentioned earlier. When the executive bought the oil painting, he had the right to publicly display the work; he wasn’t expected to hide it in where nobody could see it. The display right is limited to the original work, not copies. The Executive cannot make posters or T-shirts with the work emblazoned on them. So his rights are very limited.  However, once the Executive decided to sell the work, he gains other rights that are not expressly given to him by the artist, but are required in order to make the sale. He can make copies of the work and distribute the copies for the purposes of helping to market the sale to the public, such as creating flyers or postcards advertising the sale. Copies of the painting can also be put on a website. The Executive can also convey both his expressed and inherent rights to the gallery so they can sell the work for him.

How extensive are the inherent rights?  The answer to that question is case specific but knowing the rights available can help determine where the boundaries may be.  For example, can the owner take a high-resolution image and place it on the web, where it can easily be copied? The artist can make a case that a high-resolution image is not necessary to help make the sale, but the seller may counter that being able to zoom in on the work to see details of brush strokes can help a buyer assess quality before deciding to see the work in person.  If the image is stolen and used in a way that harms the artist, the Executive would need to show why the high resolution image was necessary despite the risk, in order to sell the work.  That may be difficult.  Can the gallery use the sale as a promotional tool long after the sale took place? Can they make copies of the work in their promotional materials? The Gallery is the seller, but may only have limited right to show the image after the sale without permission. If the normal industry practice is being able to show the painting on their website, then that would probably be acceptable, but probably not in high resolution.  However, if the Gallery wanted to do more than that, for example, use it on a brochure or as the main image on their website, the gallery would need permission from the artist, unless those rights were given to the Executive as part of his purchase agreement, when buying the work originally.  Copyright can always be transferred and depending upon the stature of the work, it may be in the best interest of the purchaser to ensure certain rights are transferred before the purchase, especially if the work has a high value.  Given such variability, it’s easy to see that determining the scope of rights being purchased can be  challenging.

Artwork and Photography

Let’s look at the next scenario: before the painting departs for the gallery, the Executive’s house is used for a Magazine’s fashion shoot. The photographer takes photos of a model in the library, capturing the oil painting in the background.

When the Executive bought the painting, he was certainly given the right to display it. As well, he has the right to make copies for personal use. For example, the Executive takes a photo of his library with the painting on the wall.  He is not required to remove the painting first.  However, the executive doesn’t have the right to copy the work or distribute it commercially unless the copying relates to selling the work. Nor then does the Executive have the right to transfer rights he doesn’t have to the Magazine.  Once the Magazine prints the photos in its next issue and distributes it to the public, it will be infringing on the artist. Paying the Executive for using his home, did not include those rights.  Unfortunately for the Magazine, copyright law is strict liability, so intent does not matter.  Even though the Magazine thought it had permission, it will still be liable.  However, depending upon how the painting is presented in the photos, the magazine may be able to claim “fair use,” which is an exception to the exclusive rights of the copyright holder.  (Fair use is a complex topic, which can be read in more detail in the article, Parody, Fair Use and “Kiss My Ass.”)  If the artists did sue, then absent a fair use defense, the Magazine would likely end up paying for the mistake.  However, most likely the Magazine would then sue the Executive, under several causes of action, for the losses.

_____________

In the next article, we’ll focus on what ownership rights a buyer has for commissioned works, such as photographing a home or a creating a corporate logo. Also, we’ll look at the different rights given when an employee creates an artistic work vs. those created by an independent contractor as well as ensuring that the creator of a work assigns the entire ownership rights to a purchaser.

If you have any questions or have something to add that may enlighten our readers, please leave your comments below or email me at [email protected]

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

24 Comments

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  • I am an artist wishing to reclaim artworks that I have previously gifted to my ex-girlfriend and her friend, do I have legal rights to reclaim my art and if so how should I proceed?

    • If you have given the art away, there might be a verbal contract, which makes it hard to get them back, however, they would only have an ownership interest in the physical works and not in the copyright. So while they have the actual work, they cannot copy it. They can only sell the physical pieces. They also cannot destroy the work under the Visual Artists Rights Act. (VARA)

  • This is a bit off topic but I sold a painting to someone and they paid for it but never picked it up and wont respond when I try to arrange delivery. It has been months that I have been trying to arrange delivery and he keeps avoiding setting anything up. I don’t know where I stand now legally. Am I supposed to hang onto this forever until he decides he finally wants them delivered?
    Thank you

    • Sorry for the delay but I missed this one. At some point, I would imagine it would be considered abandoned property. That is not my area of law but I would think this would be a state law and each state would have different rules. In the future though, I would add to your bill of sale some terms that include what happens if a work is not picked up.

  • My son is an emerging artist, just beginning to sell his original paintings. We have taken photos of his artwork in order to create prints to sell through Fine Art America. Since he is the artist, can we do this even after we have sold the painting? If I am understanding you correctly, this is ok since he holds the copyright. I am also assuming that any photos we take and post for people to buy can also be made multiple times.

    • Generally speaking, if you own the copyright, it’s up to you how you use it, and that includes how many copies to sell. Some artists sell “limited editions” of their works, which means they limit the number of copies they make which, they hope, will drive the price of each copy higher (since they have limited the supply). But many artists today release works as “open editions,” which means they’ll produce as many copies as the market demands. While it’s up to the copyright owner how to use his or her work, generally you cannot represent something as a limited edition when it is, in fact, an open edition. Similarly, an artist may run into trouble if he or she initially releases something as a limited edition and then prints more than the original number of copies.

  • What if the executive bought an original oil painting and later, the artist decided to make reproductions (I. E. Lithogrpah) thus devaluing the originality of the painting? Does the executive have any rights in this case or no?

    • If an artist represented that the original painting was, in fact, an original and that no additional copies would be made, then there may be a violation of state or local law. But generally the copyright owner has the right to make as many reproductions as he or she would like.

  • Hi there,

    I made a large pumpkin sculpture for our cities Halloween festivities about 6 years ago. No charge, I just wanted the town to have the centerpiece for its yearly events. (Halloweentown the movie was filmed here). There was a verbal agreement about how it would be displayed, treated and maintained. Since then, the tourism director has changed and now the position has been eliminated. The last couple years, it has not been displayed as created and has had a barrier placed around it…and, I’ve been told if I want to touch up the paint, I will have to do it in the plaza when it’s displayed… not part of the original arrangement. Unfortunately, it’s not in writing… the city is now drawing 10s of thousands of tourist and has a Halloweentown celebrity doing the lighting…. do I have any authority over those original verbal agreements? Do I have anything at all?

    • I think it was the movie magnate Sam Goldwyn that once quipped something like “oral contracts aren’t worth the paper they’re printed on.” Sometimes oral contracts are just as legally binding as written agreements, but obviously it’s much harder to prove the existence of the latter (much less the terms of such an agreement). Unfortunately, it’s also difficult to evaluate complex circumstances such as yours on the blog (especially because we can’t give specific legal advice here). I would recommend you consult a lawyer licensed in your jurisdiction to figure out the best way to proceed.

  • I have purchased a painting from a local artist, also a neighbor. I purchased the painting as soon as she had posted it on Facebook. She framed and delivered it the next day. Now she wants to borrow it to make a copy for another party. I realize we have joint rights to the painting. But does she the only one who should profit from selling the copy?

    • Generally the copyright in a work stays with the copyright owner regardless of whether a physical copy of that work has been sold. So, without an agreement expressly transferring the copyright, even if someone buys a physical painting, the copyright owner still has the rights to the underlying work. So, yes, the original artist still has the right to make money from the work, and the person who bought the copy has the right to resell or otherwise transfer it.

      Unfortunately we can’t give legal advice here, so for a more complete answer specific to your circumstances, you may want to speak with a copyright lawyer licensed to practice in your jurisdiction.

  • I have a question. An artist taking a class at our church, painted an image of the church. She then gave the church the original for our use in note cards and her original is hanging at the church. Is there a written document ready for her signature allowing us to reproduce her signed artwork?

    • You’ll want to consult with an attorney to figure out exactly what you need for your specific circumstances. But generally, if you just want to reproduce and distribute the work, you’ll need a license from the creator to do that, but such licenses would usually allow the creator to continue to use the work. If you want the church to own it outright, you will probably need an assignment, which transfers all rights. As I said, though, you’ll want to check with a lawyer to fully understand your specific circumstances and get you where you need to go.

  • I have a friend who was given an oil painting by an artist. The artist died. My friend has the only copy of the oil painting. What can he do with this oil painting. I am not the friend. Just a caring friend helping an elderly person.
    Thank you

    • It depends, a bit, on when it was made but if it is was painted in the last 40 years, then the copyright is probably still valid. Copyright lasts for the life of the author plus 70 years. The copyright would transfer to his or her estate after the artist’s death. So the person owning the painting really cannot do much with the painting other than sell the physical piece unless they can get permission from the estate. If you can show that there is no estate or relatives that hold the copyright, then the work would be in the public domain and you can do anything you want with it, but so could everybody else. By that I mean, once your friend exposed it to the world, anyone could make a copy and do what they want. Of course, the world wouldn’t know they could do that. Hope that helps.

  • Hi Steve – here’s a question for you: My 11 year old daughter is a burgeoning artist. She’s already won several kid art shows/contents. To get inspiration for her artwork, she will often to quick sketches of other arts work that she likes – something like a short hand style. We she has time, she goes back and uses these short hand styles to create her own art work. The art she creates looks very different from the art she has seen and liked, but it might take cues from the original such as the orientation of the subjects or even what the subject matter is. So as an example, my daughter saw a print of a painting that had a llama and some other animals in it. The style of the original could be called fancy embellished real life. What my daughter liked about the painting was the orientation of the subjects and the animal subjects. She decided to draw the same animals in the same orientation in a manga style using a completely different palette of colors. Is this legal or is it a violation of the original artists work?

    • It’s hard to say, there are no bright line rules on this but it sounds like it would be fair use. Fair use is a difficult topic but we have a series of articles around it that you should look at. As a generalized way to think of it though, if the work being copied is transformed in a way that it grabs another audience, then it leans more toward fair use. Unfortunately, nothing can be determined as fair use without the courts. On the other hand, also think about the economics. Would someone sue your daughter for what she is doing? Probably not. Fine Art generally gets a pass. It’s mass production where a lot of money is involved that it becomes more of a problem.

  • I am wondering where I stand as an Artist in this suitation. I have sold a painting and I now want to reproduce this painting as an art work on cushions ect. Am I right in assuming I retain the right to do this.

    • If it si your original work, you retain the copyright unless you specifically sold those rights with the painting or had some other agreement or understanding that you would not make any other versions. Of course, that doesn’t mean the buyer won’t attempt to stop you or put pressure on you if he or she is unhappy with your decision. Law is complicated and the sometimes money talks louder than the law.

  • I commissioned a painting of two kyackers overtaken by a wave… I drew a sketch with the positions of the kyackers..the artist moved one person back to make the painting more aesthetically pleasing… I did give her permission to go ahead without proofs..but was very clear about the positioning of the kyackers.. When I picked up the painting I noted that one kyacker was not in the correct place.. I was told, with my sister present that it could be changed later, so I took it home for Xmas… Later, when I asked to get it changed I was told that I would not like the painting if she changed it and it was not aesthetically pleasing…I then sought to have it scanned and then through computer graphics, move the kyacker… This way I would not risk ruining the painting and would have one altered print…when I asked the artist if she would give permission to do this, she absolutely refused…I said I only wanted one copy and would make sure all files were deleted…she said she would not entertain any changes. But she said she might entertain doing something else to help in June. But no promises…I am thinking of trying to find someone else and do a complete new painting… But would like to know if I could possibly go ahead with getting a photograph or scan and then proceed with that.. I actually like the painting but just wanted it to reflect the event accurately..aporeciate your advice…Rick Bates

  • Useful info. Fortunate me I discovered your web
    site unintentionally, and I am stunned why this coincidence did not came about in advance!
    I bookmarked it.

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