Canvas, Pigment, Legal Rights:

What Every Artist and Art Owner Ought to Know

When an artist steps back from applying the final brush strokes to her painting, she surveys her work with the pride of creation and a near-parental sense of combined anxiety and possessiveness. This painting is destined to go off into the world, into the hands of a private buyer, museum, or gallery. And yet, doesn’t every artist who creates a work which bears so much personal expression, so many hours of sweat and planning, such thought and emotion, feel that in some way, no matter where their creative work resides, it still in some way 'belongs' to the artist?

Copyright and Moral Rights laws are the legal recognition of the intangible aspects of a painting - or other work of creative art, like a book manuscript, architectural design, or musical composition - which remain property of the artist, even after the painting, book, blueprint, or score has left the artist's hands.

"Copyright" is the term for the legal protection given to people who create "original works," including "pictorial, graphic, and sculptural works." Copyright laws vary from country to country, though the United States is a party to some international agreements which afford artists some protection for their works in some foreign countries as well. Under U.S. law, the owner of copyright in a work has the exclusive right to make copies, to prepare derivative works, to sell or distribute copies, and to display the work publicly. Anyone else wishing to use the work in these ways must have the permission of the artist or someone to whom the artist has assigned the rights. (International copyright protections and the length of time copyright protections exist are the subject of other columns in this series.)

In terms of paintings and other visual images, the right to make, sell, and distribute copies can have a very high financial value, including the right to license posters, note cards, t-shirts, coffee mugs, and anything else you can think of with a picture of your painting on it. These rights to sell items bearing the image often exceed the financial value of the original image itself. The right to prepare derivative works means the right to create other images related to the first, such as a series of paintings on the same subject with similar treatments. This is also a highly valuable right, allowing an artist to create a numbered series, or to 'brand' a particular style and subject matter combination.

"Moral Rights" under U.S. law are an artist's right to attribution and integrity. This means that the creator of an artistic piece has the right to have his or her name displayed in such a way that viewers will know who created it. It also means that whoever purchases or displays the piece of artwork can not alter or damage it. If you've bought a painting by a contemporary artist in the U.S., you have only bought certain rights to store, hang, enjoy or resell that painting – you can’t decide that it would look better if the sky were green or if there were an extra cow in the corner and paint them in. Abraham Lincoln once said that time and advice are a lawyer's stock in trade; for a visual artist, the integrity of the body of their creative works is their stock in trade. The law prevents future owners of their works from altering them so that the artist's professional reputation and financial value is not diminished.

When an artist sells her painting, she does not sell her copyright interests with the painting, unless she and the buyer have a written contract which explicitly states that she is transferring her copyright in the work. As a practical matter, at least a partial right of public display of the work would accompany the work itself; the buyer need not hide the painting in the closet. However, the right of display which goes along with the substantive transfer of the painting itself is only the right to hang the painting for personal enjoyment, although this would include the right to sell the painting to a subsequent owner and any advertising or display related to causing such a sale. However, without the written permission of the artist, the purchaser of a painting could not legally hang the painting in a museum or other commercial or public building.

Copyright 'attaches' to a work when the work is 'created' which, for purposes of copyright law, means when the artist's creative idea was 'fixed' in a tangible medium. The enormous abstract triptych I've had a notion to paint since middle school is not protected by copyright, and if one of the dozens of artists I've drunkenly described the concept to in great detail should happen to paint it first, I'm out of luck. Ideas are not copyrighted until they are solidified. (My doodlings on cocktail napkins, however, are fixed in a tangible medium, and thus protected by copyright, wrinkles notwithstanding.)

Copyright interest can be transferred by the artist to a subsequent owner or any other person, but only by written agreement. The transfer of that copyright interest has a financial value, and if the artist is selling the copyright interest as well as a painting, the fact that the artist will never again be able to use or sell that image should be factored into the painting's price. Moral rights can not be sold or transferred; however, they can also be waived in writing. If an art buyer wants to be able to alter a piece of art, or plans on using it commercially, than he or she should know to get that permission in writing, and that such permission will have a price tag.

Although the rights protected by the copyright law arise automatically when the creative work becomes fixed in a tangible medium, an artist can and should register their visual works with the U.S. Copyright office. If an issue regarding copyright protection comes up and the artist needs to bring a legal action to enforce his or her copyright protections, the piece of visual art will have to be registered first, so getting in the habit of registering all pieces on creation is a good idea. Registration with the Copyright Office is simple: the forms and directions for submitting samples or photographs of the work can be found at http://www.copyright.gov/register/visual.html

While registration with the U.S. Copyright Office is simple and valuable for protecting an artist's copyright from theft or infringement, copyright registration alone will not provide an artist or art owners with all the legal protections necessary to safeguard the future value and integrity of their creative works. For example, the Copyright Office does not track transfers of an artwork, so provenance – another financially valuable aspect of a work of creative art – can not be established through copyright. And in order for a person to determine whether a copyright has been registered or who it belongs to, he or she must pay a fee, submit an application form, and wait for a sometimes extensive period of time for the Copyright Office to conduct a search.

Registration with Fine Art Registry as well as with the U.S. Copyright office provides significantly greater protection of artists and art owners legal rights than simple copyright registration alone. Both Fine Art Registry and copyright registration are simple and inexpensive. While copyright office registration will provide an artist with the legal basis for bringing any necessary copyright enforcement suits, registration with Fine Art Registry will reduce the odds that such suits will be necessary, by placing the registered artwork in an easily-accessible and searchable gallery, providing security tags to identify the works, and maintaining a tracking system to document artwork provenance and transfers. The artist who sends her painting off into the world with both copyright and Fine Art Registry registration for the work will know that she's provided her baby with the best legal protection available.

— by Cindy Hill, Esq.  |  May 1, 2006

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