Who Manages Artist Rights? A Guide To Painting Ownership

Artists have certain legal protections and rights over their work, including copyright protections and moral rights. Copyright is a form of legal protection provided by the laws of the United States and other countries to the creators of original works of authorship, including paintings. Copyright protection exists from the time the work is created and becomes the property of the author. Moral rights give the artist control over the fate of their work, including the right to receive credit, prevent alteration without permission, and control how the work is displayed. In the United States, the Visual Artists Rights Act of 1990 (VARA) grants certain moral rights to artists, such as the right to insist on proper attribution and, in some cases, the right to sue for destruction of their work. Understanding the legal landscape of artist rights can help artists and buyers navigate scenarios involving the use, alteration, or display of artistic works.

Copyright law

Copyright protection exists from the moment an original work is "fixed" in a tangible medium. In the visual arts, fixation occurs when a picture is painted or digital art is created. Examples of visual artwork protected by copyright include graphic art, paintings, sculptures, illustrations, architectural drawings, and more.

Copyright ownership grants the owner the exclusive right to reproduce the work, prepare derivative works, and distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The copyright owner can also authorise others to exercise these rights. The original artist retains the exclusive right to make reproductions of their artwork, even after the original is sold. This copyright covers recreations, duplications, reprintings, and any other form of "copying".

It is important to note that displaying a painting in a commercial gallery with the authorisation of the copyright owner constitutes publication if the painting is being offered for sale. On the other hand, a sculptor who places their kinetic art in their yard has not published their work, as it is simply on public display.

To resolve copyright disputes, individuals can turn to federal court or choose the Copyright Claims Board (CCB), a voluntary forum within the Copyright Office that resolves disputes involving damages totalling less than $30,000.

Moral rights

In the United States, moral rights are protected under the Visual Artists Rights Act (VARA) of 1990. VARA grants artists limited rights of attribution and protects their integrity against intentional acts. Artwork of recognised stature receives heightened protection under VARA. However, American approaches to moral rights have been criticised for focusing on the limited property rights of artists, rather than their broader interests in their creations. This has resulted in the diminishment of artists' rights in the United States.

The 5Pointz case in 2020 is a notable example of moral rights in the art world. A US appeals court upheld a ruling that awarded $6.75 million to a group of 21 graffiti artists whose work had been destroyed without their consent by the landlord, Gerald Wolkoff. This ruling set a precedent for legal disputes involving moral rights in the cultural arena in the United States.

Selling artwork

When it comes to selling artwork, there are a few key things to keep in mind, especially regarding artist rights and copyright laws. Let's go through the process step by step:

Understanding Artist Rights and Copyright

Before selling your artwork, it's crucial to understand your rights as an artist. Copyright is a form of legal protection granted to creators of "original works of authorship," which includes artistic works. According to US copyright law, the creator of an artwork immediately becomes the copyright owner, even before selling or publicly displaying the work. This means that you, as the artist, have the exclusive right to reproduce, distribute copies, and authorize derivatives of your work. It's important to remember that even if you sell the physical artwork, you still retain the underlying copyright unless explicitly agreed upon otherwise.

Determining Ownership and Rights after Sale

When you sell a piece of artwork, the ownership of the physical object transfers to the buyer. However, the copyright remains with you, the artist. This means that you still have control over certain aspects of how your artwork is used. For example, buyers may need your permission to reproduce or alter your artwork, depending on the specific circumstances and local laws. It's always a good idea to consult with an intellectual property lawyer to understand the specific rights that transfer with the sale and those that you retain as the artist.

Pricing Your Artwork

Putting a price on your artwork can be a challenging task. Consider factors such as the materials used, including their type and cost, as well as the size and weight of the piece. Assess whether it is a unique piece, a print, or part of a collection, as this can impact its value. Factor in your experience as an artist, including your years of practice, previous sales, and exhibition history. Research the market by looking at similar artists' pricing to get a sense of the standard rates for your type of artwork.

Building an Online Presence

In today's digital age, selling artwork often involves establishing an online presence. Consider creating an artist profile on social media platforms like Instagram, where you can showcase your artwork and share your journey as an artist. Engage with your audience, build a community, and use various tools to create a narrative around your art and point of view. You can also utilize websites like Artsy to discover and sell fine art. Remember to include high-quality pictures of your artwork from different angles and, if possible, create mockups of your artwork in sample rooms to give potential buyers a better sense of how it would look in their space.

Selling Platforms and Strategies

When selling your artwork, you can explore various platforms and strategies. Online marketplaces like ArtPlacer offer tools to help independent artists sell their work, providing resources for marketing, sharing, and promoting your artwork. You can also define your brand, which involves understanding what makes your work unique and adapting marketing concepts to help promote and sell your art effectively. Don't be afraid to network and connect with potential buyers, gallerists, and art enthusiasts to increase your reach and find the right audience for your creations.

Displaying artwork

Legal Considerations:

• Copyright Protection: Understand copyright law and protections available to visual artists. Copyright protection exists for original works of authorship, including pictorial, graphic, and sculptural artwork. It is automatic as soon as the artwork is "fixed" in a tangible form, but registering with the US Copyright Office provides additional legal benefits.
• Moral Rights: The Visual Artists Rights Act (VARA) grants artists moral rights, including the right to control the display of their physical work, prevent alterations without permission, and receive credit for their work.
• Written Agreements: Have clear written agreements in place when collaborating with other artists or commissioning parties. These agreements should outline copyright ownership, licensing, royalties, and attribution to protect each artist's rights.
• Certification of Authenticity: Create and store certifications of authenticity that confirm the ownership and authenticity of the artwork. This helps establish a clear chain of ownership and protect copyright interests.

Commercial and Promotional Aspects:

• Artist Representation: Many artists work with galleries, dealers, or agents who handle the business and commercial aspects of their career. These representatives can provide guidance, assist in planning exhibitions, market the artist's work, and find new opportunities.
• Online Presence: Build an online presence by creating a public profile or website to showcase your artwork and share your story. Use social media platforms to promote your work, but be mindful of copyright infringement. Consider using watermarks and low-resolution images to protect your work.
• Artwork Platforms: Utilize platforms like Art Rights to manage and certify your artworks. These platforms offer features such as cataloging, digitization, privacy settings, and sales options.
• Networking and Sales: Networking is crucial to acquiring clients and promoting your work. Attend exhibitions, build a following, and actively seek opportunities to display your artwork in galleries or other venues. Consistent sales will attract dealers, galleries, and other professionals to support your career growth.

Creative Commons licenses

Creative Commons (CC) is an international non-profit organisation that promotes knowledge sharing and creativity. It provides a range of copyright licenses known as Creative Commons licenses, which allow creators to communicate which rights they reserve and which rights they waive for their work. CC licenses are commonly used for content that creators want to be widely distributed and used by others, with or without modification, for free.

There are currently seven types of Creative Commons licenses for content creators to choose from. These licenses vary in terms of the rights they reserve for the content creator and the rights they grant to the public. The seven types of CC licenses are:

• Attribution (CC BY): This license lets others distribute, remix, adapt, and build upon the creator's work, even commercially, as long as they credit the creator for the original creation. This is the most accommodating license offered by Creative Commons.
• Attribution-ShareAlike (CC BY-SA): This license lets others remix, adapt, and build upon the creator's work for any purpose, including commercially, as long as they credit the creator and license their new creations under identical terms. This license is often compared to "copyleft" free and open-source software licenses. All new works based on the original will carry the same license, so any derivatives will also allow commercial use.
• Attribution-NoDerivatives (CC BY-ND): This license allows redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to the creator. No derivatives or adaptations are permitted under this license.
• Attribution-NonCommercial (CC BY-NC): This license lets others remix, adapt, and build upon the creator's work non-commercially, and although the new works must acknowledge the creator and be non-commercial, they don’t have to license their derivative works on the same terms.
• Attribution-NonCommercial-ShareAlike (CC BY-NC-SA): This license lets others remix, adapt, and build upon the creator's work non-commercially, as long as they credit the creator and license their new creations under the identical terms.
• Attribution-NonCommercial-NoDerivatives (CC BY-NC-ND): This is the most restrictive license offered by Creative Commons, only allowing others to download and share the creator's work with others as long as they credit them, but with no changes to the work whatsoever, and no commercial usage.
• No Rights Reserved (CC0): This license dedicates the work to the worldwide public domain, waiving all rights that the creator has to the work to the fullest extent permitted by law. This license is very flexible as it allows reusers to distribute, modify, and use the work, including for commercial purposes, without asking for permission.

It is important to note that the use of Creative Commons licenses for paintings or artistic works may vary depending on the specific laws and regulations governing artistic rights and copyright in a particular country or region.

Frequently asked questions