Paul Klee
Paul Klee
Attribution & Integrity

Who Really Owns The Art: Creator or Buyer

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 out 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 uploads 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 the 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.

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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 does 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.

Joint Ownership
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.

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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.

_____________

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]

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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.

70 Comments

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  • Hi. I’m hoping for a comment of advice. I’m an artist who just completed five, 10 x 20 foot detailed murals for a new company that my boyfiiend and I have imagined. He is a succesful business man and has started up several businesses. I quit my job and designed and painted 6 days a week without a paycheck. Now that professional photos of the paintings were taken with pro models, I was pressured to sign a non disclosure agreement. Saying I cannot use my paintings to promote my individual artwork. Now he has made a website to sell the artwork stating that I was a lead artist,” instramental” in creating the murals . Am I wrong to want credit for being ” THE ARTIST”? Do I have rights? We’ve broken up over this hot issue. Thanks, Ann

    • A lot depends on the contract here, and whether you were an employee of the company. If you were an employee and the workd=s were created specifically for the company, then the company would own the copyright. If you were not an employee, then you retain the rights to the images. Whether he has the right to sell them depends also on the intent when you created them, whether the company was supposed to sell them and what you were supposed to receive from the sales. There is also the right in the physical murals vs the right in the image itself.

      As far as the document you signed, it also depends on the intent and whether you are still getting the consideration you were entitled to when you signed it.

      There are a lot of nuances here so its hard to give you a definitive answer. But generally, the artist holds the copyright and you can decide how and when the works are shown and sold, outside fo the physical pieces which you may or may not have rights to depending upon your agreement when creating them.

      The other issue is what to do about it. Assume that you do have the rights and he cannot sell them, then you have to hire an attorney to sue him to stop the sales. That costs money. you would be entitled to any profits he made as well but if he hasn’t sold any yet them you get nothing. So suing him depends on how much you can afford to spend vs how much you can gain.

      I would ask a local attorney for a consult and have him or her look at all the documents and help you make a decision.

  • If I buy an original work (oil painting) on an etsy-like website, can I then use the image on a my business web site? I see this was touched on in the scenarios, but not expanded upon.

    • You only have the right to the physical work, not the image itself. You can only make a copy of the image if it relates to something like making it available for resale or if it is shown as part of an art collection. But you can’t post it on your business website without a license for that use.

  • This article is so convoluted and indirect. It answers no questions presented by any titles or descriptions of the article. Wtf.

  • I had someone paint a portrait of my father it was supposed to be a realistic painting when I got the painting it was not realistic does not look like my father and the colors were all wrong she went by the artist a picture of my father you can clearly see the colors are not right can I have another artist fix the painting

    • It depends on the contract but in general, you accepted it and therefore you agreed to own it as it was painted. Under the Visual Artist Right Act (VARA) you cannot make changes to the work, although this is a pretty simplistic explanation. In law, there are always nuances and other things to consider that might help get around the law

  • I have a question related to custom metal art. I have a customer who requested a custom piece of metal art that I designed based on a picture of a sail ship that the customer sent me. I don’t know where they found the picture. Anyway, I drew the ship, adding some water and a simple frame, then cut it using our plasma cam machine, finished the piece, and sold it to the customer. I did not copyright the design. The piece turned out nice, so I cut a few more of the designs and put them in our art gallery for sale. Is it fraudulent to sale the same design in our gallery? The cut is the same, the finish is different on each piece. My customer contacted me and said I was committing fraud since I charged her for custom artwork.

    • It really depends on the contract and the terms of the custom work. if the value of the work is being diminished, the person may have a case but on the other hand, selling it in the gallery may create more value. But asking to build something custom does not necessarily mean exclusive. It will depend on the intent of the agreement. You obviously didn’t know this was exclusive so that weighs in your favor.

  • A Friend of mine bought a drawing in a frame and thought it would make a nice logo for my dog walking business I paid him $125 for it he bought it from the artist and I put it on my website and business cards. we have since broken up and he told the artist about what I did he was the one who told me to do it and said”the artist who drew the drawing retained her copyrights unless you pay here royalties for the use of her image at her price” I must remove the images from my site and cards, which I did straight away. “She will be sending me a letter shortly demanding same Kindest regards Helen

    • That’s not necessarily true. She does retain the copyright but if you bought it for your business then inherent in that purchase is the license to use it in any way you want related to the business. Website, business cards, letterhead. All the things that you would expect a business to do should be ok. If you gave it to someone else to use though, let’s say as a logo for a fictitious company in a movie, then you would need a new license. Of course, I don’t know all the details so I can’t say this is true specifically for you, but generally, this i show it works.

  • That is a really informative ! Thanks for sharing. Have a question related to a situation I am currently in.
    I am archviz artist, who creates images from built/unbuilt environment completely from scratch with software . I am usually given files to start with and already designed buildings from architects. Few years ago, I was appointed to do several impressions, digitally and the client paid them. No NDA, no copyright, no license questions have arisen back then, since “trust” was at high level. The “client” actually resells the images I have done to an Architectural company, who actually hired them to do the job. Lack of team, skills, education, software leads them to me and they just “manage ” the project. An year later the architectural studio allows them to use the images and they put the impressions I have done onto their website, without asking me, without mentioning my name and stating that “each and every” image is produced by them. After a while I approached them about, if I have any rights to upload the images onto my website as well, stating the name of the respective people and companies they renders have been done for. They completely forbid me for uploading the images onto my website, since they have NDA signed, but having the images on their website and architectural studio. Found this quite unfair and after a consultation with local attorney I have decided to upload few of the images to my website as well. After seeing this, the middle-client wrote to me that “The person who holds the PAID invoice with the project name on it plus a wire transfer going to your account is the owner of the product you’ve provided.
    ” . During the past years I have done like 50-60 images for this client and they have also altered some of the images I have done for them, without explicitly ask me. They also changed their name and half of the invoices are for one company and the rest to another.
    It looks like they are afraid of loosing their clients , whereas I have no interest in approaching clients from their region. They might have licensed some of the images I have produced for them recently due to this case and to protect their business.

    The question is – Do they have rights to sue me and what are the chances to lose the case?

    • Sorry for the delayed response. This is a complex story that is too difficult to write about in a comment. If you still want to discuss it, please use the contact link in the footer to send me a message.

  • This was a good read! I have a question regarding “work for hire” agreements. I’m currently looking to hire an artist for custom designs that I can use to print onto apparel to sell under my brand. I understand that I will require a contract/agreement that states that I will take full ownership of the artwork, but are there certain stipulations or rules that i should be aware of if I hire an artist from another country? Does each country have it’s own set of rules? (example – I am Canadian and may consider hiring an artist in the U.S or another country)
    Can you offer some tips to ensure that the artist would fully hand over full rights to me, and is that possible or does the artist always hold some rights to the artwork in some way?
    Thanks! 🙂
    CL

    • I don’t know Canadian law so not sure how a work for hire agreement is handled. But generally, you can probably gain those right through a contract. I am just not sure how that contract would look in Canada.

  • My father was an artist and a series of his work is now owned by a small college. We had never seen the entire series until they had a showing and afterward I asked if I could have digital copies of the art. They offered to give me some low resolution copies but i would like to have high resolution. I’ve offered to pay for a photographer to come take the photos but the college has told me no. My father has passed away and we (the children) now own the rights to his work. Do we have any rights in this? Thanks.

  • If someone bought a priceless piece of historical artwork, could they have it cremated with them when they die, or would the government be able to stop the destruction?

  • Hi, can I purchase original paintings older than VARA Act ,and seeing that I own them use them on products I want to sell?? If not, what is the best way to outright own certain arts/ paintings that I can reproduce as art on my products without any liability to my company, please let me know the right verbage if I need a contract for the artist to sign to render all commercial gain. And what if they are not alive anymore??? Thank you

  • I own an original oil painting that was purchased at auction in London with the artist present. He is now trying to sell the license through an agent. Does he have the right to do that? Do we have any rights? We live in USA

  • I’m a company that gives a person products we make to use on their vehicle… in return they are to give me marketing materials including video and photos of their vehicle using my parts, so I can use the materials to market my brand (Co.) and the parts being used. This person hires a photographer to take photos of their vehicle. They then distribute the photos given to them by the photographer. They give me copies of these photos. What rights do I have to use them?

  • I own an original drawing. I purchased it at an estate sale years ago. The drawing was created, I believe, sometime in the 60’s. The artist has died. His son is now handeling all his art and has contacted me to purchase his father’s work to resell.

    I want to have my cake and eat it to, but I don’t want to do anything illegal. I want to keep the original and make prints and sell them. Is this legal?

    Thank you!

  • I have a question about a piece of artwork I had made for T-shirts 25 years ago. It was to commemorate the 25th anniversary of the lunar landing. I paid the shop to 1)produce concept artwork for the shirt with input from me and 2)bought a number of silk screened T-Shirts to re-sell. I plan to do a new shirt with a new artwork that I will design and draw up for the 50th anniversary, and was thinking of re-releasing the 25th anniversary shirts (have to be redone pretty much, the silk screen was broke down many years ago by the shop), do I have that right or is the artwork the company’s? If not, could I do a new artwork based off the old design?

  • Hi! I have a question, wonder if you might be able to help me. Situation: a now well-known artist gave an original picture of his as a gift to a friend, and that friend later became my friend and in my film I have a shot of that picture. Question: who owns the rights? The artist or the friend who received the picture as a gift? As far as I know, this early work has not been reproduced anywhere else and the artist has no copies. Please help! I really need to know if I can keep that shot in the film or re-shoot the scene without the picture on the wall.

  • one more point i should add.. the piece in question was actually done as one of the two artworks that made up my “A” level high school final exam. .. one might ask… does one’s exam paper belong to the student if the school gave it back to them, even though their mom had it framed on the wall ?

  • Hi, Many many years ago I gave to my mother one of my early paintings and I am now wanting it back because she has recently died and so now has my father. It has been proposed by the executor of the estate, my estranged brother, that i will have to buy it back if i want it just like if i want my mom’s cooking pans or old worn out easy chair, but only if i offer more money for it than he in a bidding war. I do not have anything remotely close to the financial means like my brother does for such a game and despite that the piece is actually of very little monetary value it is very sentimental to me. There are no copies of this art piece and the subject matter only had relevance to myself and my mother. It is signed btw. Please advise asap. thank you

  • I have a question. I am working, freelance, with a printshop. I am designing art for t-shirts for a minimal fee of around $50. Their client wanted “something old west like with the name of the state in it” I designed it and it has become a little popular. Another person in a neighboring state wants a t-shirt but with the name of the state changed (and potentially other ellements altered). Can I sell the design to them also? Who owns my work?

    • Hi Roy, that depends on what kind of agreement you have with your original client. Did you sign one? I would check it over for a work-for-hire clause – if you’ve agreed to a work-for-hire arrangement, then the client owns the work. Hope that helps.

  • Hello. I gave a drawing to an ex boyfriend as a gift an he will not return it. It is a well known piece in my area and many people offer to buy it.
    He posts photos of it on social media to taunt me. Is there anyway for me to get it back?

  • Hello. I gave a drawing to an ex boyfriend as a gift an he will not return it. It is a well known piece in my area and many people offer to buy it.
    He posts photos of it on social media to taunt me. Is there anyway for me to get it back?

    • Hi Monica, the only way to get it back is to sue him (or ask, which doesn’t seem like an option). It’s up to you to determine whether the drawing is worth the lawsuit. Feel free to email us if you need more advice!

    • I verbally agreed to do six illustrations for a friend writing a book. The book was published. We agreed that the illustrations would be mailed back to me after the book was published.
      Twice I gave her my address to mail the the illustrations. There was a disagreement about posting what where on websites.
      It has been about a year since she received my illustrations. I contacted her today and She has destroyed my illustrations. This is what I was told: “ When you told me off and we never spoke again, I held them for about 30 days to see if you had reconsidered our friendship. I heard nothing so I tossed them when I cleaned my office.”
      I am not sure if I want to take, or am able to take legal action. But would like to find out more.
      I have contacted Amazon asking that they remove the book.

  • Very interesting article, though I have another question which this article does not make clear. My father is an internationally know sculpture and unfortunately has had numerous pieces of his metal work stolen in the recent months. I recently found a site advertising a piece for sale which is fine if the person bought it ligament. I inquired about the purchase with no response from seller. Subsequently found she was advertizing the piece on more than one web site . Is it legal to advertise an original piece of art for sale on more than one web site, i. e. etsy, cherish, ebay and others at the same time for different prices? Thank you for any response

    • Hi Heather, if the piece is being sold by a person who bought this work legitimately, then yes, it would be okay for them to be shopping the piece out for resale on any website of their choice. However, if the work is being advertised as belonging to the person listing it for sale, when it is in fact someone else’s work, then you have a copyright issue on your hands.

  • My brother passed away in 2002. Before he passed he had several oil paintings that he made lipograph/prints that he sold. Is someone allowed to take a picture of the print they purchased while my brother was alive, and use it for prayer on social media? They are not reproducing it, they are giving all credit to by brother…. but my sister in law is threatening to sue this lady. My brother would be honored that his art is still touching many… however I do not know what to tell this lady for using it because of my sister in law.? Does she have the right to post the print on social media?

    • Hi Penny, this is a tricky situation. On the one hand, this person purchased your brother’s artwork, but how the image is being used today may violate the Visual Artists Rights Act. Was the work created before 1990? If so, it wouldn’t be protected under this provision. If you have additional questions, feel free to email us.

  • I am an old artist who has sold a couple of paintings but have no knowledge of any of this information. I did try to get previous paintings I sold to someone to use in a gallery but they would never honor my requests. I just recently am looking at trying to “officially” sell my pieces but it’s hard to give up some of the good ones. My question is, is there a sample sales contract or something or an artist contract that I can include with the bill of sale? Does that make sense? I am virtually unknown.

  • I have been looking for laws/information on whether this infringes or not. I am an artist. I draw/design primarily cars. Recently I did a small drawing of a vintage drag race car, called War Eagle, it raced in the late 70s. I do a lot of these 5×7, original pieces and do not make prints or copies of them. They are not derived from anyones photo, and frankly, are not always 100% correct.. because of size, most sponsor logs, names ect… are not legible, and they are even slightly “cartooned”… recently however, the owner of the original car came forward with legal threats that I had imposed on his trademarked/copyrighted name and image of this vintage car… I am fairly sure that is not true, but all verbiage I can ever find on this subject is grey… any advice? we are talking about simple $100 renderings

  • Well now! Right to the point! I wholeheartedly agree with what you say: The owner of an original painting advertises the painting for sale on Etsy, eBay or through an auction house. And so, the owner of the painting or the auction house has the right to post a photograph of that painting on those websites, in order to advertise it, so that it can be sold. Makes total sense.

    Now, that original painting is sold. So the seller no longer owns the painting, and no longer has rights to it.
    The painting is not yet in the public domain. However the artist is no longer living.

    Here my issue: How long after the sale do the websites have to remove the photographs of that original painting? Who can complain to whom? Can the new owner of that original painting do something, and if so, what?

  • 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.

      • Just curious, in the situation this answer is in reply to (borrowing painting to make a copy), does the owner of the painting have to make it available for copying, photographing, etc., or does the artist only have a right to use images they took of the painting before in the owners possession and can’t force the owner to make the original available?

    • I just purchased three old paintings (1925, 1945, and one estimated at 1920). They are beautiful landscapes. Two are signed, the third one is not. I would like to take photographs of these paintings and make them into greeting cards for sale. I would also like to take just portions of the images and use them for the cards as the details are beautiful.

      How do I find out if these pictures are public domain or if they somehow have an artist’s estate attached to them?

      • Anything before 1923 will be in the public domain. Otherwise, the copyright can hold up for the life of the author plus 70 years, so first you would look at when the artist died. if the artist dies before 1948, then it is in the public domain. Copyright also used to require a © symbol and early works, like the one from 1925 would have had to reregister at some point. You would have to look that up at the Copyright Office but if the artists are not well known, chances are they never did. It just wasn’t a common practice for artists especially after a work was sold. It’s not an easy task and a little hard for me to explain all the nuances here but we have some articles on copyright duration you might want to look at.

  • 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

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