What do you get when you buy some art?

March 24, 2008 2:17 PM

If I buy an original piece of artwork, from the artist, without a written contract, who owns the copyright?

I often purchase small pieces of original artwork at craft fairs and the like. Generally these sales are done without any paperwork of any kind, sometimes not even a simple receipt.

I'm curious about the implicit copyright transfers that may or may not occur under...

a) sale of a mechanical reproduction of an original --ie a print
b) sale of a in-the-style-of-a-previous-work reproduction of an original --ie a smaller version of a larger work, but produced by the artist by hand
c) sale of the 'original' expression of an artistic vision --ie a working sketch/notes that are latter used as basis for a painting
d) sale of the 'final' expression of the artistic vision --ie the painting the artist offers for sale as 'an original'

I'm most curious about c & d style sales, if they restrict the artist's ability to make further works on the same theme, and who owns the right to produce prints from the originals, both during the artist's lifetime, and afterwords.

posted by nomisxid to law & government (13 comments total)

In the US, I believe the artist retains the copyright unless you have a written contract stating the product is a work for hire.
posted by DarlingBri at 2:28 PM on March 24

The reason that there's no official copyright paperwork is because as soon as the artist creates something in a tangible form he/she has a copyright on it.

You cannot make prints without licensing the image.

The exception to this rule is art-for-hire .... if an artist creates an image for an employer, then the employer would retain the copyright.

This page has a good explanation of copyright law as it pertains to artists.
posted by Ostara at 2:29 PM on March 24

The creator owns the copyright unless it's a WMFH or they explicitly transfer the copyright. It's like buying JD Salinger's letters -- even if you own the physical letters, you don't get to publish them, because he still owns the copyright.
posted by katemonster at 2:39 PM on March 24

In the UK there are Droit de suite laws which now entitle artists or their estates to a share of the money from any resale of their work, so while copyright may be here or there they still earn money from future sales. I don't know if something similar applies in the US but it's worth considering.
posted by fire&wings at 2:41 PM on March 24

There is no transfer of copyright. And under the Berne convention, copyright is automatic, and belongs to the artist. Unless you have an explicit contract that says you have purchased the copyright, it stays with the artist.

As owner of the art work, your only rights come from the doctrine of "First Sale". What that means is that you can give away or resell the art to someone else, perhaps at a markup, without permission from the copyright holder and without paying any royalty.

But, for instance, you as owner of the art don't have the right to make prints of it and sell them, or put it on the cover of a book, or in fact use it in any way except to hang it on your wall, store it, or give/sell it to someone else.

And even if you do purchase the art, the original artist does still retain the right to make prints, put it on the cover of a book, etc.

Your c and d cases place no restrictions whatever on the artist. You, as purchaser, are gaining a specific piece of artwork. You have no rights to the concept, or presentation, and you have no right to exclusivity unless you specifically purchase it and have a contract that says so.

To summarize: you don't own anything except the print/painting. You don't own any intellectual property unless you specifically purchase it and get a contract saying you did.
posted by Class Goat at 2:45 PM on March 24

great answers all, which bring up a follow up questions,

1. I have the original of a piece that, after an artist's death, his estate wishes to turn into a retail print. Is it safe to assume that they would have to negotiate access to my 'original' in order to turn their 'right' into an actual product? There isn't any unwritten requirement that I grant them access, correct?

2. I commission a unique work-for-hire specifically for a t-shirt. In this case, the artist would be prevented from making derivative works later, yes?
posted by nomisxid at 2:54 PM on March 24

Regarding F&W's post, I don't think there's any equivalent law in the US giving the original artist any rights in contradiction to the doctrine of First Sale, but it's possible that there is one I haven't heard of. IANAL.
posted by Class Goat at 2:54 PM on March 24

As regards your later questions:

1) Not necessarily. It's becoming more common these days for artists to thoroughly photograph their paintings before they sell them. They could use such photos to create prints without needing to talk to you.

But if they needed access to the original, they'd have to talk to you, in order to avoid falling afoul of the trespass laws. As far as I know (IANAL) they'd have no right to demand access.

2) It would depend entirely on the way the contract was worded.
posted by Class Goat at 2:59 PM on March 24

In case 1, practical considerations would probably require that they seek access to the work and you would have no legal obligation to grant it. If they had a means of making the print without access (such as a high quality slide or something similar) they could do so without your permission.

In case 2, you would own the copyright and could prevent the creation of derivative works, provided that "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire". (17 USC 101) In other words, you would need a written contract with the artist signed by both of you specifically stating that the work is a "work made for hire" by the artist for you. Most copyright lawyers use that talismanic language to avoid doubt.

Re: Fire&Wings: There are (currently) no "moral rights" or driot de suite or other similar concepts in US copyright law that permit artists to collect royalties on sales of a particular object after the initial sale, even if they retain the copyright. Once you purchase a work of art you may resell that particular copy of the work freely, even though the copyright stays with the maker unless you explicitly contract otherwise. That's what people mean when they talk about the first sale doctrine. (That's why you don't buy software, you license it . . . and don't get me started about CDs . . . )

IAAIPL, I am NOT your IP lawyer. You might want to see one if you decide to go with case 2.
posted by The Bellman at 3:16 PM on March 24

Hrm, so if I approach an artist in a coffee house and say "dude, I'll pay you $30 to draw me x on a y doing z, so I can put it on a t-shirt", and we never right anything down, I am at his/her mercy, both if the shirt becomes popular, as well as if I want to make posters with the same image on them?
posted by nomisxid at 3:20 PM on March 24

If I approach an artist in a coffee house and say "dude, I'll pay you $30 to draw me x on a y doing z, so I can put it on a t-shirt", and we never right anything down, I am at his/her mercy, both if the shirt becomes popular, as well as if I want to make posters with the same image on them?

Yes. You paid for him to draw something. You didn't buy any rights to what he created.
posted by rokusan at 3:51 PM on March 24

"Dude, I'll pay you $30 to draw me x on a y doing z on a work-for-hire basis, so I can put it on a t-shirt. Sign here."

(I'm not a lawyer and offer no judgement on the suitability of those sample contracts.)
posted by Zed_Lopez at 4:05 PM on March 24

1. I have the original of a piece that, after an artist's death, his estate wishes to turn into a retail print. Is it safe to assume that they would have to negotiate access to my 'original' in order to turn their 'right' into an actual product? There isn't any unwritten requirement that I grant them access, correct?

Huh, this is actually a great question. In the law of real property there is something called an "easement by necessity" where, for example, if you own land that is completely cut off from the nearest road, you have a legal right to use a driveway on your neighbor's property. I'd argue that the same applies here - the estate should have sufficient access to the original artwork because they would need it in order to exercise their intellectual property rights. But avoiding this headache is why artists go to pretty great expense to document and photograph their work before it's sold.

The Bellman is right that there is no droit de suite right to residuals from subsequent sales of intellectual property. But the Visual Artists Rights Act provides - in certain circumstances - additional protections against misattribution, vandalism, destruction, and other acts that might harm the artist's reputation, even after the work has been sold.
posted by Saucy Intruder at 5:51 PM on March 24