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March Issue 2002

LEGAL Q & A - for the Arts
by Edward Fenno, Copyright Attorney

Question: When I sell a painting that I created, do I still have the right to make replicas or posters of it? Or does the buyer now have those rights?

Answer: Assuming you were not commissioned or employed by someone else to create the painting specifically for them, you keep all of those rights. An artist working for him- (or her-) self owns the copyright in the paintings he creates. In general, the sale of a copyright must be in writing.

A copyright consists of a bundle of rights. In works of visual art (e.g., paintings, drawings, prints, sculptures), these rights including the exclusive rights to:

· reproduce the work
· adapt, transform or otherwise prepare
"derivative works" from the work (e.g, make
posters, prints or giclees)
· sell, lease, rent or otherwise distribute the
work to the public
· display the work to the public

These exclusive rights are subject to some exceptions. For example, a newspaper can publish a photo of an artist's painting in a news story even though such publication might technically have violated the artist's rights to adapt and display the work.

Still, the basic copyright belongs to the artist. When the work of art is sold, the only rights automatically sold with it are the rights to sell or display the single original work purchased. Thus, a museum may hang (i.e., display to the public) a painting it owns without the permission of the artist. It may not, however, sell posters or postcards of the painting without permission. Such permission, also known as a "license," is required until either the museum acquires the copyright or the copyright expires. For recent paintings, copyright usually does not expire for 70 years after the death of the artist.

Note that the sale of any rights in the copyright bundle must be in writing, but an artist may license any of these rights orally. Since many buyers are unfamiliar with copyright laws, it may be wise to include with the sale of a work of art a brief written statement setting forth what rights are retained by the artist. Otherwise, the buyer may claim that the artist or gallery "told" the buyer that no prints, postcards, etc. of the painting would ever be sold; when in fact it was the artist's intention all along to sell such adaptations.

Edward Fenno is an intellectual property and media attorney with the law firm of Moore & Van Allen. He represents a number of artists, as well as clients in the publishing and technology industries. He will be a periodic contributor to Carolina Arts on legal issues for artists. Fenno can be reached in Charleston, SC, at 843/579-7040. This article is copyright (c) 2002 by Moore & Van Allen, PLC; published by permission.

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