Saturday, December 23, 2017

Who owns the reproduction rights on a painting?

I've long wondered if, when I buy a painting from an artist, have I also implicitly bought out the rights to reproduce the art for commercial purposes?

For instance, these paintings by Fejes, do I have the right to make and publish copies of them?  This is more of a question of principle than of practicality since realistically, I doubt there's  anyone proactively protecting the digital reproduction rights of these paintings. Plus. there's a "fair use" concept that even if I had NO digital rights for commercial purposes, I do have rights to use them for "fair use" which probably includes this sort of article and all sorts of other news and catalog rights.  There's also the fact that Intellectual Property rights don't last forever. Here's a sentence about that which I pulled from the web: "In most countries, copyright protection covers the lifetime of the author (artist) plus 50 years after his death. In a number of countries, this period extends to 70, 90 or 95 years after death."

Still, the question stands. As background, a few points:

1.   Many artists make a point of having a publisher so that their paintings are sold as originals, as limited edition numbered prints, and in larger numbers as prints on canvas or paintings.  In these cases, I think the publisher's role would be to protect the artists rights by objecting to anyone who independently started printing and publishing the artists work.  In these cases, the artist has probably contractually distinguished between selling the original painting and the reproduction rights.

2.   Books, digital images, videos, films, and albums (CDs, records, and digital) are usually sold with an accompanying copyright notice which limits the rights of the purchaser to using the the materials for non commercial purposes and limiting making copies to back-ups.  However, I've never bought a painting (or sculpture) that came with any such message stuck on the back or as part of the receipt. I've asked a few times at galleries when I bought or been shopping about what rights they are selling. In every case, they had no answer and in most cases, they thought that I was crazy just for asking.

3. The difference between a copyrighted work with all rights reserved versus a work-for-hire with all commercial rights sitting none with the person doing the work but with the entity paying for the work. I've worked in the educational publishing and video game development businesses for two decades now and I've long been aware that the developer needs to contract with all the programmers, artists, musicians, and designers to make it clear that they are hired to work on a work-for-hire basis with all the copyright and commercial rights accumulating in the entity paying for the work, not in the people paid to do it.

4. Historically, these work-for-hire contracts can sometimes be negated by courts but only in extreme cases. The one that I have read about was Chorus Line, where many hungry talented dancers were asked as part of an audition for a play, to tell their personal story. These stories were used as the basis for the massively successful Chorus Line play and movie and albums.  Court cases through the decades on behalf of the dancers have argued with some success that they should be compensated as authors with some royalties. I think they have won significant amounts on the basis that the play often used their stories somewhat literally as the script which was not envisaged at all as they auditioned for a part as a dancer.

5.  When a painting hangs in a museum, even a contemporary one still subject to copyright law, the museum often sells postcards and posters of the art.  But, I doubt any royalties are paid. Is this the precedent that the physical owner of a work of art has the rights unless they have been distributed separately by the artist?

Anyone knows the answer?

The question was answered definitely to me by a lawyer.  Painters retain their copyright on paintings when they sell the painting. Period. Clear. It's theirs. If a buyer would like to purchase the rights for the digital copies of a painting, they can.  But those rights are not transmitted in the routine sale of a painting.