Universal Copyright
Intellectual Property
Copyright ownership is distinct from ownership of the physical piece of artwork.
When an artist creates a painting, the artist owns both the copyright in the artwork, and the physical artwork.
Ownership of the copyright is an intellectual property right. Ownership of the physical artwork is a personal property right.
A sale of the physical artwork does not transfer the copyrights in the artwork.
Likewise, transferring the copyright does not necessarily transfer the personal property rights in the physical artwork.
Only the artist can reproduce, adapt, distribute, and publicly perform and display the artwork.
A copyright provides the copyright owner with exclusive rights, including the right to copy the work, distribute the work, adapt the work, publicly perform the work, and publicly display the work.
The copyright owner must enter into a written
agreement, specifying the rights being transferred, to sell these exclusive rights.
Individual rights can also be licensed with
either an oral or written agreement.
For example: CheBlue Artist could grant the Beach View Art Center a license to make its own prints of CheBlue Imagery to sell.
When an artist sells a piece of artwork, the artist is just selling the physical object, not the copyright.
However, once a lawful copy of the artwork is sold, the copyright owner may not prevent further distribution of that same copy or public display of that copy.
This concept is known as the first sale doctrine – once a physical copy is sold (or given away) that same physical copy may be redistributed, resold, and displayed publicly.
If the Beach View Gallery purchased CheBlue Imagery, it would be free to display the artwork on museum property without seeking CheBlue’s permission.
Visual Artists Rights Act
The Visual Artists Rights Act (VARA) grants visual artists additional rights that extend past a sale.
VARA provides visual artists with the (moral) rights of attribution and integrity, so as to protect an artist’s reputation.
The artist retains these rights even after selling the artwork.
Other types of artists, like musicians and book authors, do not enjoy these
rights. The artist can waive, but not transfer, these rights in a written agreement.
The attribution right allows the artist to claim authorship of artwork created by him. Likewise, the artist can require the purchaser remove the artist’s name from mutilated artwork, or artwork the artist did not create.
The integrity right stops others from intentionally distorting, mutilating, or modifying artwork, in a way that dishonors the artist’s reputation. Further, if the artwork is of “recognized stature,” the artist can stop “any intentional or grossly negligent destruction” of the artwork.
Universal Copyright
Intellectual Property
Essentials
When an artist sells physical artwork, the copyrights in the artwork do not transfer to the purchaser. The copyright owner must enter into a written agreement, specifying the rights being transferred, in order to sell a copyright. The first sale doctrine allows the purchaser of a lawful copy of the artwork to resell, distribute, or publicly display that copy without the artist’s permission.
However, the artist retains the copyrights in the artworks ‘original expression’, and the rights of attribution and integrity in the sale of the physical artwork.