The field of visual arts poses particular problems within copyright law.  Those problems arise out of the sale of visual art and the rights acquired by the buyer (and, those retained by the artist, if any).  In the past, an artist created a painting and was happy to get paid for his or her creation.  The painting left the artist's custody and control and became an object owned by the buyer.  Thereafter, the artist had no connection with the painting or any control over what the owner did with it.

Usually, the new owner of the painting simply hung it on the wall, which is what the artist expected.  However, many paintings now sell to subsequent buyers for much higher prices than the artist originally received for the work.  In addition, the owners of visual arts sometimes create new works of art (illustrated books, fabric designs) in which the painting, or portions of the painting, is incorporated.  Some works have even been incorporated into pornographic or obscene presentations that the original creator found objectionable.  Finally, the artist, having become well-known because of the sale of her paintings, wants to exhibit her entire oeuvre at a public show, but finds out that the owner of his painting will not let her have temporary custody of the painting to exhibit it.

Artists have increasingly become dissatisfied with the fact that they get nothing from the higher prices paid by subsequent buyers of their paintings.  In addition, they have been upset and shocked when they find out that some buyers have begun to make wholesale use of their artistic creation in new works in other fields.  They are also hurt when a new owner won't allow them to borrow a painting they have sold so it can be included in an exhibition of their work.

Well-crafted agreements of sale can eliminate many of these problems.  Of course, a buyer of a painting may balk at signing an agreement that makes them give back a portion of the price they receive when they resell the painting.  (And finding out whether they have resold the painting can be a real-world problem that may nullify the best-drafted agreement.)  However, they shouldn't object to a clause that limits their right to put the work of art into an obscene creation.  And they may agree to let the painting be loaned to the artist for purposes of exhibition (although insurance may end up being a bar to the artist's ability to take advantage of this language). 

Some states (New York and California, for example) have enacted laws that provide some protection for artists.  Go to Copyright Resources to see listings of state laws in this area as well as federal law in this area.  Efforts to give back to the original artist a slice of the price when his or her work is resold have so far come to naught. 

Artists need to be aware of what their rights are and to make sure they know how much of the store they are giving away when the take that check and their life's blood is carried out the door.

Law Offices of Douglas Clark Hollmann

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Copyright - All Rights Reserved - Douglas Clark Hollmann - 2000

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