Copy Like an Artist, Don’t Steal

Under copyright law, the artist creator has the exclusive right to:

  • Distribute the work in any form
  • Make copies of the work in any fixed form (digital or print)
  • Display the work in pubic or on a website
  • Make derivatives of the work by modifying or changing an original work, and
  • Publicly perform the work (includes performing music, book readings, films, etc.)

If you’ve watched home improvement shows, the Property Brothers, for example, you may have noticed that all the artwork hanging in homes is blurred out. The Property Brothers would be infringing on an artist’s rights and violating most or all of the above if they made a copy (captured the work on video/film) and displayed it in public (on their TV show).

Creator’s Rights

Congress passed the Visual Artists Rights Act of 1990 (VARA), which 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.” VARA is limited to 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.

Buyer’s Rights

A buyer can resell an original work of art. The artist can object to a sale if their artwork will be used in any way that has a negative impact on the artist’s reputation. The artist still maintains all copy rights to their work, however. For example, the artwork could be sold to a manufacturer of greeting cards, but the card company would not have the right to reproduce the art and distribute cards unless they also have an agreement with the creator of the artwork.

Buyers can display artwork in their homes, but they can’t use the art on, for example, posters or bumper stickers or t-shirts. The owner can, however, make copies of the artwork for personal use on a website or on printed material when the purpose is to sell the artwork.

Copyright can always be transferred and depending upon the stature of the work, it may be in the best interest of the buyer to ensure certain rights are transferred before the purchase, especially if the work has a high value. Will a Certificate of Authenticity add value to artwork? The short answer is yes even if you’re just starting out.

Art in the Public Domain

If artwork was created before 1990, you can modify, reproduce, or copy art for distribution without asking permission if the artist/creator died more than 70 years ago. The artwork is in the Public Domain.

Art Works Created after 1990

Protection expires with the death of the author for art works created on or after 1990. VARA rights cannot be transferred but can be waived if the author expressly agrees to waiver in a signed written instrument with the required specifics.

Image: Camille on the Beach at Trouville by Claude Monet in 1870. (In Public Domain.)

Power Play

Don’t assume, if you’re an artist, that your work will never have the kind of value that requires authentication. Having this provenance in place will actually increase the value of your work when that time comes. A detailed Certificate of Authenticity helps collectors trace the history of artwork and prove that it’s original.

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