Copyright Moral Rights

What Happens to Art in a Divorce? [Hint: Get an Art Appraiser]

Divorce Appraiser

Divorce happens and with it the divvying up of the things: Who keeps the house? The cars? What about the artwork? Yes, the artwork. When an art collecting or artist-present couple divorces, the artwork can become as contentious as the couple’s most expensive assets. That’s especially true when one-half of the divorcing couple is a successful artist since that person will often add sentimentality to the worth of the piece.

Every state has its own unique divorce law, but most states require an equitable distribution of assets and items acquired during the marriage. This essentially means that couples will need to identify the value of all their assets and compute a balance sheet indicating who gets what in order to ensure that the total value was split 50/50.

And when an artist or art collecting couple divorces, their collective artworks are added to the mix.

Using an Art Appraiser to Assign Value to Your Art

As we discussed, not everything you’ve ever collected or created will be up for grabs by your former significant other. Anything you created or collected before you married, or after you separated will not be considered as part of the marriage. Likewise, any payment you may have received for any artwork pre- or post- marriage won’t be taken into account.

This is precisely how things can get tricky, however, once you initiate divorce proceedings. As you begin, the first step will be to develop an inventory, or a detailed list of all the artworks you have made, collected, and sold during the course of the marriage. Everything must be taken into account, from the pieces you haven’t sold that remain in storage, to those that hang in your home or in someone else’s home. If you’re a collector, any works you have purchased and later unloaded will need to be considered, so that the proceeds of those sales can be considered when distributing finances during the divorce. Making things even more complicated, anything you miss – accidentally or intentionally – might be considered fraud, and would automatically tip the scales in your former spouse’s favor. In fact, if it’s found that you failed to identify some of your artworks, then you spouse could stand to keep the work, and or profit entirely from its sale.

art appraiser
In a divorce, you should consider an art appraiser to value any art.

Not only must all works be identified, they also need to be located and accounted for. In addition, artists will need to identify which of their works are being exhibited in galleries, museums or other arts institutions, and whether or not they were paid for the use of said pieces, or how much they stand to make once those pieces have been sold.

After you’ve identified the location and status of all of your artworks, you’ll need to assess the value of the work, which is absolutely the most daunting task within the divorce proceedings. In order to determine the value of an artwork, a professional art appraiser or gallery owner or dealer will be called in to evaluate the market against the artist’s sales history and probability that they will continue to rise within the art world. Of course, each side is entitled to conduct their own appraisal, which can make the process more complicated. Hopefully, you and your former spouse will be able to overcome that hurdle and hire one person to do the job. Especially because the artist may be sensitive about the value assigned to the work, which will likely yield a lot of back and forth between the artist and the art appraiser.

Throughout this process, it will be important for the artist party to remain realistic about the worth of his most prized works. If works that have previously been exhibited haven’t sold, then it’s unlikely that they will be assigned great value. On the other hand, artists that have unfinished works will want to bring those works-in-progress to light, since the cost of materials and the probability that several editions will be created will be factored into the overall distribution.

Now, if the couple in question is a collecting couple, then the process might wind up becoming more complex, or at least further prolonged. When an artwork is purchased, it is often necessary to conduct due diligence and determine the work’s provenance, or the documented ownership history. Though collectors typically research a work’s provenance before making a purchase, in a divorce it might be useful to engage in the process all over again. That could prolong the entire process since the task of identifying a work’s provenance is often arduous, particularly for older works. On the other hand, it’s an excellent way to ensure neither party is being duped about the value of an artwork during divorce proceedings.

Copyright, VARA and Other Considerations

As you’re undergoing divorce proceedings and divvying up the artwork, copyright will be an important tenet to consider. As an artist and creator of an original work, you own the copyright in the works you produce. U.S. copyright law protects an original work of authorship, fixed in a tangible medium, with a nominal degree of creative expression. As such, you hold certain rights over the work – namely, the right to reproduce, distribute or perform said work. Now, let’s assume that you and your spouse are dividing up your artistic assets, and there are certain works he or she would like to sell rather than keep or vice versa. Would you be able to under copyright law? Technically, no.

VARA
Copyrighted work is also an issue in a divorce.

The artist holds the copyright, and thus, the exclusive rights that go with it. However, under copyright law, the copyright holder can transfer those rights to another person or entity, in whole or in part, for whatever duration the creator desires. For example, if your goal is to resell the work, then you would ask your spouse to transfer the right of distribution to you.

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. Meaning that, if you’re dividing artwork with your spouse, you’ll need to specifically state who owns the copyright in the work, and which aspects of their copyright has been transferred to you.

In addition to copyright considerations, divorcing spouses will need to consider the Visual Rights Artists Act of 1990 (VARA). Under VARA, works of art that meet certain requirements afford their author’s additional rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work.

VARA exclusively grants authors of works that fall under the protection of the Act the following rights:

  • right to claim authorship
  • the right to prevent the use of one’s name on any work the author did not create
  • right to prevent the use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation
  • right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation

If any of these rights are violated, an artist has the ability to sue the offender in federal court. So, if you planned on keeping all your ex-spouse’s work in order to destroy it for your own revenge, be advised that doing so could get you sued. Similarly, if you intend to sell the painting to someone your spouse doesn’t like, then be aware that they may decide not to claim authorship of the piece, thereby rendering your sale completely worthless.

Though divorce can be stressful, keeping track of your artworks, along with the rest of your assets, will make the process much smoother and make it easier for any art appraiser to value your art.

Do you have any advice for handling art in a divorce?  Let them know in the comments below.

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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  • I am painting very large oil portraits of my step kids ( my husbands kids) and he has made threats to take them away and I would “not be allowed to have paintings of them” in the event we separate. I have been creating these for my own portfolio and personal collection and not as a gift for him or anyone else and am the sole creator of them and the photography in which I use for reference. could he take them from me or in the event that we don’t work out? or how can I protect myself and my works ( the above advice Is also great). any additional info would be great, thank you.

    -Conflicted artist

    • I think this question really turns on right of publicity. Do you have permission to paint your stepkids in the first place? We have a few articles on this topic – I encourage you to check them out!

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