Who Owns an Artistic Work? An Instructive Guide for Buyers and Artists.

Oh! Oh! Oreo (2023) by Sam Lasseter for 85 Tenth Avenue

(Updated) When we purchase an item, like a blender, a car, or a really cool toboggan for Snowmageddon races, we gain full ownership rights. This means we have the freedom to use it, modify it, dismantle it, or even discard it as we see fit. The same isn’t true when buying an artistic work, whether it’s a physical piece like a painting or a digital creation like a company logo. The buyer doesn’t receive the full set of rights. Instead, the ownership is shared, with some rights going to the buyer while others are retained by the work’s creator or copyright holder.

The concept that we can buy something without owning it entirely challenges our usual understanding of purchases, with most people assuming that acquiring an artistic work is the same as buying any other product. On top of that, the rights granted to the buyer or retained by the creator can differ depending on the type of artistic work involved. This lack of understanding has often led to disagreements between buyers and creators and, in some cases, costly legal disputes over what each party believes they own.

Setting the Stage: Hypothetical Scenarios to Analyze Ownership Rights of Artistic Works

How does a creator or buyer know what rights they have when an artistic work is purchased? While we can’t review every possible situation (that’s why we have intellectual property lawyers, after all), there are a few hypothetical scenarios that can help map out some of the more common boundaries of ownership rights.

A wealthy executive purchases an oil painting from a living artist to be the centerpiece of his private library. After hanging the work, he feels he may have made a mistake in purchasing the painting but thinks that if he cuts it into three smaller pieces, it might look better in the room.
After some negative reaction to his idea, the executive instead decides it would be better to sell it and consigns it to a reputable gallery for sale.
Before the gallery takes possession of the oil painting, a major fashion magazine rents the executive’s home for a photo shoot. The photographer uses the private library as the main setting, and the oil painting is shown in the background of several photos, which the magazine publishes in its next issue.

The purchaser in each of these scenarios may be infringing on the rights of the artist or creator/copyright holder. Let’s look at each scenario and see what the purchaser may have done wrong and whether there are any defenses to get them out of trouble.

Scenario 1: VARA and the Alteration or Destruction of Visual Art

In our first scenario, our wealthy executive buys an oil painting, which he wants to cut into three sections to hang separately. Can he do this?

Until 1990, there would be little question. Nothing in the Copyright Act prohibited the purchaser of a physical, artistic work from altering it, as long as the alteration didn’t infringe on the artist’s copyright. The purchaser could even destroy the work.

However, the ability to alter the work only applied to physical work, not the image itself. Under Copyright Law, a copyright holder has the exclusive right to:

So, let’s say someone copies an illustration they got off the web and then alters it and uses it on a brochure or a website; that would be considered a derivative work and would violate the artist’s rights. Physical work is different, though. A purchaser could paint changes onto the work or, as described in our scenario, cut it up into smaller pieces; they couldn’t copy that and distribute it because that would violate the artist’s copyright.

Many countries around the world, however, created laws that prevented the alteration and destruction of artistic works, immortalized in the Berne Convention, the international copyright treaty that the United States did not initially sign onto. Moral rights gave the creator control of the eventual fate of an artistic work, along with protecting the artist’s reputation. Moral rights included the right to receive credit for work, prevent physical work from being altered without permission, control over how the physical work is displayed, and also receive resale royalties.

After the United States signed onto the Berne Convention, Congress enacted the Visual Artists Rights Act of 1990 (VARA) to better comply with the moral rights provisions. However, VARA is a bit more limited than most other countries. It grants two rights to authors of visual works:

“The right to prevent intentional distortion, mutilation, or other modification of the work that would be prejudicial to his or her honor or reputation” and
The right to prevent the destruction of a work of “recognized stature.”

Note the difference between these two conditions. In the first condition, the mutilation or intentional distortion must be “prejudicial to his or her honor or reputation.” The reputational consequences must be proven by the artist, and any damages awarded would be based on the effect on the artist’s reputation. Otherwise, alterations are allowed. Destruction, on the other hand, does not require harm to the creator’s reputation. However, the work must be of a “recognized stature.” These requirements can be very subjective and hard to prove, which is one of the reasons very few VARA cases have made it through the courts.

The most prominent case involved graffiti artists at 5points in Long Island City, New York. Artists were given permission to adorn the walls of an abandoned building with art. Later, the owner of the building wanted to sell it to a developer and remove the art. Despite the protests and pending legal action from the artists, the building owner destroyed all the artwork. After a decade of legal action, the artists were awarded $6.7 million in damages. For more on the 5Pointz case, see Are Graffiti Artists Master Craftsmen or Just Audacious Vandals?

Artists at 5Pointz won $6.75 million in damages for the destruction of their work.

VARA has limitations, as well. It applies only to a “work of visual art,” which the statute designates as paintings, drawings, prints, sculptures, and photographs of 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. Finally, for works created on or after 1990, protection expires with the death of the author, but works created before VARA was enacted receive VARA protection until the copyright ends, which is the life of the author plus 70 years. Also, VARA rights cannot be transferred but can be waived if the author expressly agrees to waiver in a signed written agreement.

So, given these rules, can the Executive in our scenario cut up the oil painting into three pieces if the artist doesn’t want him to do so? Well, the painting is a work of visual art created recently, and the creator is still alive, so the situation does fall within VARA. But does it fulfill one of the two prongs? In order for the artist to prevent the executive’s action, he would have to show that the mutilation harmed his reputation. That is not easy to do in this case. It is not as if the executive wrote derogatory remarks about the artist all over the painting. Alternatively, the artist could claim that the alteration is, in fact, the destruction of the work. He would then need to show that the work was of significant stature. If the artist is famous, that would be fairly easy. The stature question becomes murkier, though, if the artist is only mildly well-known in certain circles or geographic locations. So, the artist, in this case, has a good shot at protecting the work, but it isn’t a sure thing.

Scenario 2: Inherent Rights in Buying Visual Art

The executive has decided not to alter the painting but instead resell it at a gallery. Does the Executive have any limitations as to how, where, or with whom he sells the work? Does the gallery have any limitations?

Unlike many other countries, VARA only provided limited moral rights. An artist cannot decide where or to whom a painting is resold. However, artists do have the right of attribution under VARA, which allows them to claim or deny that he or she is the creator. If the creator doesn’t like where the work is being shown, the artist can keep the seller from using the artist’s name when referencing the work but can’t stop where it is being sold, who can buy it, or where it is privately displayed.

What rights do each of the parties have in reselling a work? The artist holds the copyright and, thus, the exclusive rights that go with it, as mentioned earlier. The copyright holder can keep those rights or transfer them to another person or entity for whatever duration the copyright holder desires. Those rights are generally transferred through contracts or licensing agreements, which detail exactly which rights are being transferred, who receives them, and how long they last. A good contract should include sufficient detail regarding the boundaries of the rights being conveyed to limit any misunderstanding that might lead to a lawsuit.

What is often harder to determine are the boundaries of inherent rights, which are those rights needed in order to fulfill the terms of the agreement but aren’t specifically stated.

Artist AholSniffsGlue settled a copyright infringement case with American Eagle for using his work without permission in the background of photos used in the company’s ad campaign.

To illustrate this point, let’s look at our scenario. When the executive bought the oil painting, he had the inherent right to display the work publicly. That’s why he bought it. He didn’t need that right to be transferred in a contract or invoice. He wasn’t expected to hide it where nobody could see it. He bought it to display it. He cannot make copies of it or distribute those copies to the public. That right is exclusive to the artist. If the Executive made T-shirts with the work emblazoned on them or took a photo of the painting to put on his company website without permission, that would be a copyright infringement.

However, the Executive has the right to resell the work. At that point, he gains additional rights that are not expressly given to him by the artist but are required in order to make the sale. He can make copies of the work and distribute the copies for the purposes of helping to market the sale to the public, such as creating postcards advertising the sale. The Executive can also convey both his expressed and inherent rights to the gallery so they can sell the work for him.

How extensive are the inherent rights? The answer to that question is case-specific, and without providing those rights in a contract, determining the boundaries can often be difficult.

For example, can the seller take a high-resolution image and place it on the web, where it can easily be copied? The artist can make a case that a high-resolution image is not necessary to help make the sale, but the seller may counter that being able to zoom in on the work to see details of brush strokes can help a buyer assess quality before deciding to see the work in person.

The gallery can copy and display the work so it can make the sale, but can the gallery keep the work on its website after the sale takes place? Can the gallery make copies of the work in their promotional materials, showing it as a sold work? If the normal industry practice is being able to show the painting on its website as a sold work, then that use would probably be acceptable. However, if the gallery wanted to do more than that, for example, use it on a promotional brochure, that may be a different story.

The point here is that there are certain inherent rights that are straightforward and do not need to be formally transferred, but others aren’t so clear. Artists should consider the acceptable uses and list them and the non-acceptable uses in the purchase agreement so the buyer knows exactly what can be done with the work. The less ambiguity there is, the less likely that the buyer will use the work in an unacceptable way.

Scenario 3: Copyright Risks in Artistic Work Reproduction

Let’s look at the next scenario: before the painting departs for the gallery, the Executive’s house is used for a Magazine’s fashion shoot. The photographer takes photos of a model in the library, capturing the oil painting in the background.

When the Executive bought the painting, he was certainly given the right to display it. He also has the right to make copies for personal use. For example, the Executive takes a photo of his library with the painting on the wall. He is not required to remove the painting first. In that same vein, let’s say he is selling the house; he would not be required to remove the painting before taking the photos.

He has the inherent right to copy and display the painting for the sole purpose of selling his house. However, the executive generally doesn’t have the right to take photos of the room where the painting is prominently displayed, make copies of those photos, and distribute them commercially unless the copying relates to selling his house. He doesn’t have the right to publish those photos in a magazine or give the magazine permission to make copies and display the photos on its pages.

Let’s flush out the scenario a bit further. Let’s say the Executive mistakingly believes that since he is the owner of the artistic work, he can allow the photographer to show the painting in the background of the model photos. The magazine asks the Executive if he has the rights to the painting, and he tells them that he does and signs an agreement to that effect. The Magazine prints the photos in its next issue and distributes the magazine to the public. At that point, the magazine was infringing on the artist’s rights.

As a result, the artist is suing the magazine for infringement and demanding a licensing fee and damages. The magazine says that it did not intend to infringe and that they have an agreement with the Executive that says it can publish the photos. Therefore, they are not at fault, and the magazine should sue the Executive instead. Unfortunately for the Magazine, that reason isn’t valid.

Copyright law is strict liability, meaning it is a no-fault law. The intent or any other reasons for why they infringed do not matter. The magazine distributed a copy of the painting without permission from the copyright holder, so the magazine is infringing. Even though the Magazine thought it had permission, it is still liable. The Executive is potentially liable as well for giving permission to copyright the material even though he is not the one who copied and distributed the work.

The Executive may also be liable to the Magazine for false statements, but those laws can vary by state. The magazine should have had an agreement with the Executive for the use of his space. That agreement should include an indemnification clause just for these types of situations. A typical indemnification clause would be:

Indemnification: You agree to indemnify and hold harmless the Magazine, its affiliates, officers, agents, and employees from and against any claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with the use of the Executive’s property for the Magazine’s photo shoot. This includes but is not limited to, any infringement of intellectual property rights or other rights of third parties related to items, artworks, or any other property displayed within the premises during the photo shoot.

Regardless of whether there is a formal indemnification clause, the recourse for the magazine is to sue the Executive for whatever damages and legal fees they expend in the lawsuit.

Depending upon how the painting is presented in the photos, there is also a possibility that the magazine could claim “fair use,” which is an exception to the exclusive rights of the copyright holder. (Fair use is a complex topic, which can be read in more detail in the article, Understanding Fair Use with a Star Trek and Dr. Seuss Mashup“)

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The ownership of an artistic work encompasses a complex web of rights and responsibilities. These scenarios illustrate the nuanced differences between owning a physical item and owning an artistic creation. Understanding these distinctions is crucial for both creators and buyers to navigate the legal landscape effectively. By being aware of the specific rights retained and transferred in the purchase of artistic work, both parties can avoid misunderstandings and potential legal disputes, ensuring respect for the creator’s rights and the buyer’s intentions.

Did this exploration of artistic work ownership spark any thoughts or personal experiences? Join the conversation in the comments below.

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.

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Reply Rick Bates January 19, 2016 at 8:52 pm

I commissioned a painting of two kyackers overtaken by a wave… I drew a sketch with the positions of the kyackers..the artist moved one person back to make the painting more aesthetically pleasing… I did give her permission to go ahead without proofs..but was very clear about the positioning of the kyackers.. When I picked up the painting I noted that one kyacker was not in the correct place.. I was told, with my sister present that it could be changed later, so I took it home for Xmas… Later, when I asked to get it changed I was told that I would not like the painting if she changed it and it was not aesthetically pleasing…I then sought to have it scanned and then through computer graphics, move the kyacker… This way I would not risk ruining the painting and would have one altered print…when I asked the artist if she would give permission to do this, she absolutely refused…I said I only wanted one copy and would make sure all files were deleted…she said she would not entertain any changes. But she said she might entertain doing something else to help in June. But no promises…I am thinking of trying to find someone else and do a complete new painting… But would like to know if I could possibly go ahead with getting a photograph or scan and then proceed with that.. I actually like the painting but just wanted it to reflect the event accurately..aporeciate your advice…Rick Bates

Reply Steve Schlackman January 21, 2016 at 9:57 pm

Ha. Artistic Integrity. Artists don’t like to change their work and they have that right. It’s too bad you couldn’t have worked something out.

Reply Tugi March 2, 2023 at 12:59 am

Since you have made the sketch that was the basis for the painting you are the owner of the copyright and not the “artist”. If you can prove that you created the concept by sketches, before the painting was made, then you are considered the artist and not the trades-person who followed your instructions more or less successfully.
Here we have a case of the classic confusion between an artist and a trades-person.
The implied idea that accuracy is more significant measure in art than aesthetics is a completely different issue. In principle, if one wants to commission a painting prescribing the accuracy of the motif, she would better do hiring an illustrator instead of an artist.

Reply Sandy McLean July 31, 2016 at 6:27 pm

I am wondering where I stand as an Artist in this suitation. I have sold a painting and I now want to reproduce this painting as an art work on cushions ect. Am I right in assuming I retain the right to do this.

Reply Steve Schlackman August 5, 2016 at 11:24 am

If it si your original work, you retain the copyright unless you specifically sold those rights with the painting or had some other agreement or understanding that you would not make any other versions. Of course, that doesn’t mean the buyer won’t attempt to stop you or put pressure on you if he or she is unhappy with your decision. Law is complicated and the sometimes money talks louder than the law.

Reply Marston Gould August 1, 2016 at 11:04 am

Hi Steve – here’s a question for you: My 11 year old daughter is a burgeoning artist. She’s already won several kid art shows/contents. To get inspiration for her artwork, she will often to quick sketches of other arts work that she likes – something like a short hand style. We she has time, she goes back and uses these short hand styles to create her own art work. The art she creates looks very different from the art she has seen and liked, but it might take cues from the original such as the orientation of the subjects or even what the subject matter is. So as an example, my daughter saw a print of a painting that had a llama and some other animals in it. The style of the original could be called fancy embellished real life. What my daughter liked about the painting was the orientation of the subjects and the animal subjects. She decided to draw the same animals in the same orientation in a manga style using a completely different palette of colors. Is this legal or is it a violation of the original artists work?

Reply Steve Schlackman August 5, 2016 at 11:18 am

It’s hard to say, there are no bright line rules on this but it sounds like it would be fair use. Fair use is a difficult topic but we have a series of articles around it that you should look at. As a generalized way to think of it though, if the work being copied is transformed in a way that it grabs another audience, then it leans more toward fair use. Unfortunately, nothing can be determined as fair use without the courts. On the other hand, also think about the economics. Would someone sue your daughter for what she is doing? Probably not. Fine Art generally gets a pass. It’s mass production where a lot of money is involved that it becomes more of a problem.

Reply Dave August 15, 2016 at 4:31 pm

I have a friend who was given an oil painting by an artist. The artist died. My friend has the only copy of the oil painting. What can he do with this oil painting. I am not the friend. Just a caring friend helping an elderly person.
Thank you

Reply Steve Schlackman August 19, 2016 at 11:57 am

It depends, a bit, on when it was made but if it is was painted in the last 40 years, then the copyright is probably still valid. Copyright lasts for the life of the author plus 70 years. The copyright would transfer to his or her estate after the artist’s death. So the person owning the painting really cannot do much with the painting other than sell the physical piece unless they can get permission from the estate. If you can show that there is no estate or relatives that hold the copyright, then the work would be in the public domain and you can do anything you want with it, but so could everybody else. By that I mean, once your friend exposed it to the world, anyone could make a copy and do what they want. Of course, the world wouldn’t know they could do that. Hope that helps.

Reply Bobbie September 1, 2016 at 10:52 am

I have a question. An artist taking a class at our church, painted an image of the church. She then gave the church the original for our use in note cards and her original is hanging at the church. Is there a written document ready for her signature allowing us to reproduce her signed artwork?

Reply Chris Reed November 20, 2016 at 8:04 pm

You’ll want to consult with an attorney to figure out exactly what you need for your specific circumstances. But generally, if you just want to reproduce and distribute the work, you’ll need a license from the creator to do that, but such licenses would usually allow the creator to continue to use the work. If you want the church to own it outright, you will probably need an assignment, which transfers all rights. As I said, though, you’ll want to check with a lawyer to fully understand your specific circumstances and get you where you need to go.

Reply Stacie Newsome September 6, 2016 at 8:36 am

I have purchased a painting from a local artist, also a neighbor. I purchased the painting as soon as she had posted it on Facebook. She framed and delivered it the next day. Now she wants to borrow it to make a copy for another party. I realize we have joint rights to the painting. But does she the only one who should profit from selling the copy?

Reply Chris Reed November 20, 2016 at 6:50 pm

Generally the copyright in a work stays with the copyright owner regardless of whether a physical copy of that work has been sold. So, without an agreement expressly transferring the copyright, even if someone buys a physical painting, the copyright owner still has the rights to the underlying work. So, yes, the original artist still has the right to make money from the work, and the person who bought the copy has the right to resell or otherwise transfer it.

Unfortunately we can’t give legal advice here, so for a more complete answer specific to your circumstances, you may want to speak with a copyright lawyer licensed to practice in your jurisdiction.

Reply Paul January 9, 2017 at 1:02 am

Just curious, in the situation this answer is in reply to (borrowing painting to make a copy), does the owner of the painting have to make it available for copying, photographing, etc., or does the artist only have a right to use images they took of the painting before in the owners possession and can’t force the owner to make the original available?

Reply Lara Jones August 14, 2018 at 5:59 am

I just purchased three old paintings (1925, 1945, and one estimated at 1920). They are beautiful landscapes. Two are signed, the third one is not. I would like to take photographs of these paintings and make them into greeting cards for sale. I would also like to take just portions of the images and use them for the cards as the details are beautiful.

How do I find out if these pictures are public domain or if they somehow have an artist’s estate attached to them?

Reply Steve Schlackman October 10, 2018 at 8:14 pm

Anything before 1923 will be in the public domain. Otherwise, the copyright can hold up for the life of the author plus 70 years, so first you would look at when the artist died. if the artist dies before 1948, then it is in the public domain. Copyright also used to require a © symbol and early works, like the one from 1925 would have had to reregister at some point. You would have to look that up at the Copyright Office but if the artists are not well known, chances are they never did. It just wasn’t a common practice for artists especially after a work was sold. It’s not an easy task and a little hard for me to explain all the nuances here but we have some articles on copyright duration you might want to look at.

Reply Byron October 4, 2016 at 7:29 pm

Hi there,

I made a large pumpkin sculpture for our cities Halloween festivities about 6 years ago. No charge, I just wanted the town to have the centerpiece for its yearly events. (Halloweentown the movie was filmed here). There was a verbal agreement about how it would be displayed, treated and maintained. Since then, the tourism director has changed and now the position has been eliminated. The last couple years, it has not been displayed as created and has had a barrier placed around it…and, I’ve been told if I want to touch up the paint, I will have to do it in the plaza when it’s displayed… not part of the original arrangement. Unfortunately, it’s not in writing… the city is now drawing 10s of thousands of tourist and has a Halloweentown celebrity doing the lighting…. do I have any authority over those original verbal agreements? Do I have anything at all?

Reply Chris Reed November 20, 2016 at 7:40 pm

I think it was the movie magnate Sam Goldwyn that once quipped something like “oral contracts aren’t worth the paper they’re printed on.” Sometimes oral contracts are just as legally binding as written agreements, but obviously it’s much harder to prove the existence of the latter (much less the terms of such an agreement). Unfortunately, it’s also difficult to evaluate complex circumstances such as yours on the blog (especially because we can’t give specific legal advice here). I would recommend you consult a lawyer licensed in your jurisdiction to figure out the best way to proceed.

Reply Sarah Martin October 10, 2016 at 6:57 pm

What if the executive bought an original oil painting and later, the artist decided to make reproductions (I. E. Lithogrpah) thus devaluing the originality of the painting? Does the executive have any rights in this case or no?

Reply Chris Reed November 20, 2016 at 6:06 pm

If an artist represented that the original painting was, in fact, an original and that no additional copies would be made, then there may be a violation of state or local law. But generally the copyright owner has the right to make as many reproductions as he or she would like.

Reply Pat Genberg October 10, 2016 at 11:54 pm

My son is an emerging artist, just beginning to sell his original paintings. We have taken photos of his artwork in order to create prints to sell through Fine Art America. Since he is the artist, can we do this even after we have sold the painting? If I am understanding you correctly, this is ok since he holds the copyright. I am also assuming that any photos we take and post for people to buy can also be made multiple times.

Reply Chris Reed November 20, 2016 at 6:05 pm

Generally speaking, if you own the copyright, it’s up to you how you use it, and that includes how many copies to sell. Some artists sell “limited editions” of their works, which means they limit the number of copies they make which, they hope, will drive the price of each copy higher (since they have limited the supply). But many artists today release works as “open editions,” which means they’ll produce as many copies as the market demands. While it’s up to the copyright owner how to use his or her work, generally you cannot represent something as a limited edition when it is, in fact, an open edition. Similarly, an artist may run into trouble if he or she initially releases something as a limited edition and then prints more than the original number of copies.

Reply Jess October 20, 2016 at 11:05 am

This is a bit off topic but I sold a painting to someone and they paid for it but never picked it up and wont respond when I try to arrange delivery. It has been months that I have been trying to arrange delivery and he keeps avoiding setting anything up. I don’t know where I stand now legally. Am I supposed to hang onto this forever until he decides he finally wants them delivered?
Thank you

Reply SteveAdmin January 8, 2017 at 10:38 pm

Sorry for the delay but I missed this one. At some point, I would imagine it would be considered abandoned property. That is not my area of law but I would think this would be a state law and each state would have different rules. In the future though, I would add to your bill of sale some terms that include what happens if a work is not picked up.

Reply Emilio December 12, 2016 at 9:18 pm

I am an artist wishing to reclaim artworks that I have previously gifted to my ex-girlfriend and her friend, do I have legal rights to reclaim my art and if so how should I proceed?

Reply SteveAdmin January 8, 2017 at 10:17 pm

If you have given the art away, there might be a verbal contract, which makes it hard to get them back, however, they would only have an ownership interest in the physical works and not in the copyright. So while they have the actual work, they cannot copy it. They can only sell the physical pieces. They also cannot destroy the work under the Visual Artists Rights Act. (VARA)

Reply Jacob Manz July 21, 2017 at 6:33 am

But do they have rights to copy the piece to sell it? Do the pieces of art fall anywere into fair use?

Reply Tatiana Covington December 22, 2016 at 8:23 pm

If you call that crap art…

Reply Steph February 5, 2017 at 6:12 pm

Well now! Right to the point! I wholeheartedly agree with what you say: The owner of an original painting advertises the painting for sale on Etsy, eBay or through an auction house. And so, the owner of the painting or the auction house has the right to post a photograph of that painting on those websites, in order to advertise it, so that it can be sold. Makes total sense.

Now, that original painting is sold. So the seller no longer owns the painting, and no longer has rights to it.
The painting is not yet in the public domain. However the artist is no longer living.

Here my issue: How long after the sale do the websites have to remove the photographs of that original painting? Who can complain to whom? Can the new owner of that original painting do something, and if so, what?

Reply Jeff Allison February 20, 2017 at 2:05 am

I have been looking for laws/information on whether this infringes or not. I am an artist. I draw/design primarily cars. Recently I did a small drawing of a vintage drag race car, called War Eagle, it raced in the late 70s. I do a lot of these 5×7, original pieces and do not make prints or copies of them. They are not derived from anyones photo, and frankly, are not always 100% correct.. because of size, most sponsor logs, names ect… are not legible, and they are even slightly “cartooned”… recently however, the owner of the original car came forward with legal threats that I had imposed on his trademarked/copyrighted name and image of this vintage car… I am fairly sure that is not true, but all verbiage I can ever find on this subject is grey… any advice? we are talking about simple $100 renderings

Reply Nicole Martinez July 31, 2017 at 10:37 am

Hi Jeff, please get in touch directly with Steve and we can discuss this issue. Thanks!

Reply Robbie February 24, 2017 at 8:48 pm

I am an old artist who has sold a couple of paintings but have no knowledge of any of this information. I did try to get previous paintings I sold to someone to use in a gallery but they would never honor my requests. I just recently am looking at trying to “officially” sell my pieces but it’s hard to give up some of the good ones. My question is, is there a sample sales contract or something or an artist contract that I can include with the bill of sale? Does that make sense? I am virtually unknown.

Reply Penny March 1, 2017 at 6:48 am

My brother passed away in 2002. Before he passed he had several oil paintings that he made lipograph/prints that he sold. Is someone allowed to take a picture of the print they purchased while my brother was alive, and use it for prayer on social media? They are not reproducing it, they are giving all credit to by brother…. but my sister in law is threatening to sue this lady. My brother would be honored that his art is still touching many… however I do not know what to tell this lady for using it because of my sister in law.? Does she have the right to post the print on social media?

Reply Nicole Martinez July 31, 2017 at 10:36 am

Hi Penny, this is a tricky situation. On the one hand, this person purchased your brother’s artwork, but how the image is being used today may violate the Visual Artists Rights Act. Was the work created before 1990? If so, it wouldn’t be protected under this provision. If you have additional questions, feel free to email us.

Reply Dmitry April 7, 2018 at 4:21 am

VARA protection ends with the death of the author, Nicole.

Reply heather July 23, 2017 at 12:37 am

Very interesting article, though I have another question which this article does not make clear. My father is an internationally know sculpture and unfortunately has had numerous pieces of his metal work stolen in the recent months. I recently found a site advertising a piece for sale which is fine if the person bought it ligament. I inquired about the purchase with no response from seller. Subsequently found she was advertizing the piece on more than one web site . Is it legal to advertise an original piece of art for sale on more than one web site, i. e. etsy, cherish, ebay and others at the same time for different prices? Thank you for any response

Reply Nicole Martinez July 28, 2017 at 12:46 pm

Hi Heather, if the piece is being sold by a person who bought this work legitimately, then yes, it would be okay for them to be shopping the piece out for resale on any website of their choice. However, if the work is being advertised as belonging to the person listing it for sale, when it is in fact someone else’s work, then you have a copyright issue on your hands.

Reply Monica August 6, 2017 at 8:35 am

Hello. I gave a drawing to an ex boyfriend as a gift an he will not return it. It is a well known piece in my area and many people offer to buy it.
He posts photos of it on social media to taunt me. Is there anyway for me to get it back?

Reply Nicole Martinez August 9, 2017 at 12:17 pm

Hi Monica, the only way to get it back is to sue him (or ask, which doesn’t seem like an option). It’s up to you to determine whether the drawing is worth the lawsuit. Feel free to email us if you need more advice!

Reply Sue August 21, 2018 at 2:44 pm

I verbally agreed to do six illustrations for a friend writing a book. The book was published. We agreed that the illustrations would be mailed back to me after the book was published.
Twice I gave her my address to mail the the illustrations. There was a disagreement about posting what where on websites.
It has been about a year since she received my illustrations. I contacted her today and She has destroyed my illustrations. This is what I was told: “ When you told me off and we never spoke again, I held them for about 30 days to see if you had reconsidered our friendship. I heard nothing so I tossed them when I cleaned my office.”
I am not sure if I want to take, or am able to take legal action. But would like to find out more.
I have contacted Amazon asking that they remove the book.

Reply Monica August 6, 2017 at 8:36 am

Reply Roy August 12, 2017 at 7:37 pm

I have a question. I am working, freelance, with a printshop. I am designing art for t-shirts for a minimal fee of around $50. Their client wanted “something old west like with the name of the state in it” I designed it and it has become a little popular. Another person in a neighboring state wants a t-shirt but with the name of the state changed (and potentially other ellements altered). Can I sell the design to them also? Who owns my work?

Reply Nicole Martinez August 27, 2017 at 4:46 pm

Hi Roy, that depends on what kind of agreement you have with your original client. Did you sign one? I would check it over for a work-for-hire clause – if you’ve agreed to a work-for-hire arrangement, then the client owns the work. Hope that helps.

Reply Mary August 28, 2017 at 4:54 pm

Did the artist ultimately win the case?

Reply Jen September 19, 2017 at 3:57 pm

Hi, Many many years ago I gave to my mother one of my early paintings and I am now wanting it back because she has recently died and so now has my father. It has been proposed by the executor of the estate, my estranged brother, that i will have to buy it back if i want it just like if i want my mom’s cooking pans or old worn out easy chair, but only if i offer more money for it than he in a bidding war. I do not have anything remotely close to the financial means like my brother does for such a game and despite that the piece is actually of very little monetary value it is very sentimental to me. There are no copies of this art piece and the subject matter only had relevance to myself and my mother. It is signed btw. Please advise asap. thank you

Reply Jen September 19, 2017 at 4:10 pm

one more point i should add.. the piece in question was actually done as one of the two artworks that made up my “A” level high school final exam. .. one might ask… does one’s exam paper belong to the student if the school gave it back to them, even though their mom had it framed on the wall ?

Reply AnonymousFilmmaker September 25, 2017 at 2:03 pm

Hi! I have a question, wonder if you might be able to help me. Situation: a now well-known artist gave an original picture of his as a gift to a friend, and that friend later became my friend and in my film I have a shot of that picture. Question: who owns the rights? The artist or the friend who received the picture as a gift? As far as I know, this early work has not been reproduced anywhere else and the artist has no copies. Please help! I really need to know if I can keep that shot in the film or re-shoot the scene without the picture on the wall.

Reply Cherisa Vigne September 25, 2017 at 8:28 pm

My sister used 3-4 of my drawings in a successful book. I sent her the original sketches and she made the same drawings into digital art for the book. How and can I get compensation?

Reply Darryl October 11, 2017 at 3:03 pm

I have a question about a piece of artwork I had made for T-shirts 25 years ago. It was to commemorate the 25th anniversary of the lunar landing. I paid the shop to 1)produce concept artwork for the shirt with input from me and 2)bought a number of silk screened T-Shirts to re-sell. I plan to do a new shirt with a new artwork that I will design and draw up for the 50th anniversary, and was thinking of re-releasing the 25th anniversary shirts (have to be redone pretty much, the silk screen was broke down many years ago by the shop), do I have that right or is the artwork the company’s? If not, could I do a new artwork based off the old design?

Reply Tracey Nicholsn October 14, 2017 at 1:09 pm

I own an original drawing. I purchased it at an estate sale years ago. The drawing was created, I believe, sometime in the 60’s. The artist has died. His son is now handeling all his art and has contacted me to purchase his father’s work to resell.

I want to have my cake and eat it to, but I don’t want to do anything illegal. I want to keep the original and make prints and sell them. Is this legal?

Thank you!

Reply Joey Arbogast November 1, 2017 at 12:13 pm

I’m a company that gives a person products we make to use on their vehicle… in return they are to give me marketing materials including video and photos of their vehicle using my parts, so I can use the materials to market my brand (Co.) and the parts being used. This person hires a photographer to take photos of their vehicle. They then distribute the photos given to them by the photographer. They give me copies of these photos. What rights do I have to use them?

Reply Susan Sonkin November 9, 2017 at 7:05 pm

I own an original oil painting that was purchased at auction in London with the artist present. He is now trying to sell the license through an agent. Does he have the right to do that? Do we have any rights? We live in USA

Reply Jay December 4, 2017 at 11:08 pm

Hi, can I purchase original paintings older than VARA Act ,and seeing that I own them use them on products I want to sell?? If not, what is the best way to outright own certain arts/ paintings that I can reproduce as art on my products without any liability to my company, please let me know the right verbage if I need a contract for the artist to sign to render all commercial gain. And what if they are not alive anymore??? Thank you

Reply Tony January 22, 2018 at 9:20 pm

If someone bought a priceless piece of historical artwork, could they have it cremated with them when they die, or would the government be able to stop the destruction?

Reply Nyuk3 January 23, 2018 at 2:57 pm

My father was an artist and a series of his work is now owned by a small college. We had never seen the entire series until they had a showing and afterward I asked if I could have digital copies of the art. They offered to give me some low resolution copies but i would like to have high resolution. I’ve offered to pay for a photographer to come take the photos but the college has told me no. My father has passed away and we (the children) now own the rights to his work. Do we have any rights in this? Thanks.

Reply Connie February 4, 2018 at 9:46 pm

This was a good read! I have a question regarding “work for hire” agreements. I’m currently looking to hire an artist for custom designs that I can use to print onto apparel to sell under my brand. I understand that I will require a contract/agreement that states that I will take full ownership of the artwork, but are there certain stipulations or rules that i should be aware of if I hire an artist from another country? Does each country have it’s own set of rules? (example – I am Canadian and may consider hiring an artist in the U.S or another country)
Can you offer some tips to ensure that the artist would fully hand over full rights to me, and is that possible or does the artist always hold some rights to the artwork in some way?
Thanks! 🙂
CL

Reply Steve Schlackman October 10, 2018 at 10:38 pm

I don’t know Canadian law so not sure how a work for hire agreement is handled. But generally, you can probably gain those right through a contract. I am just not sure how that contract would look in Canada.

Reply An March 7, 2018 at 4:03 pm

That is a really informative ! Thanks for sharing. Have a question related to a situation I am currently in.
I am archviz artist, who creates images from built/unbuilt environment completely from scratch with software . I am usually given files to start with and already designed buildings from architects. Few years ago, I was appointed to do several impressions, digitally and the client paid them. No NDA, no copyright, no license questions have arisen back then, since “trust” was at high level. The “client” actually resells the images I have done to an Architectural company, who actually hired them to do the job. Lack of team, skills, education, software leads them to me and they just “manage ” the project. An year later the architectural studio allows them to use the images and they put the impressions I have done onto their website, without asking me, without mentioning my name and stating that “each and every” image is produced by them. After a while I approached them about, if I have any rights to upload the images onto my website as well, stating the name of the respective people and companies they renders have been done for. They completely forbid me for uploading the images onto my website, since they have NDA signed, but having the images on their website and architectural studio. Found this quite unfair and after a consultation with local attorney I have decided to upload few of the images to my website as well. After seeing this, the middle-client wrote to me that “The person who holds the PAID invoice with the project name on it plus a wire transfer going to your account is the owner of the product you’ve provided.
” . During the past years I have done like 50-60 images for this client and they have also altered some of the images I have done for them, without explicitly ask me. They also changed their name and half of the invoices are for one company and the rest to another.
It looks like they are afraid of loosing their clients , whereas I have no interest in approaching clients from their region. They might have licensed some of the images I have produced for them recently due to this case and to protect their business.

The question is – Do they have rights to sue me and what are the chances to lose the case?

Reply Steve Schlackman October 10, 2018 at 10:29 pm

Sorry for the delayed response. This is a complex story that is too difficult to write about in a comment. If you still want to discuss it, please use the contact link in the footer to send me a message.

Reply Helen Miller March 22, 2018 at 8:59 pm

A Friend of mine bought a drawing in a frame and thought it would make a nice logo for my dog walking business I paid him $125 for it he bought it from the artist and I put it on my website and business cards. we have since broken up and he told the artist about what I did he was the one who told me to do it and said”the artist who drew the drawing retained her copyrights unless you pay here royalties for the use of her image at her price” I must remove the images from my site and cards, which I did straight away. “She will be sending me a letter shortly demanding same Kindest regards Helen

Reply Steve Schlackman October 10, 2018 at 10:21 pm

That’s not necessarily true. She does retain the copyright but if you bought it for your business then inherent in that purchase is the license to use it in any way you want related to the business. Website, business cards, letterhead. All the things that you would expect a business to do should be ok. If you gave it to someone else to use though, let’s say as a logo for a fictitious company in a movie, then you would need a new license. Of course, I don’t know all the details so I can’t say this is true specifically for you, but generally, this i show it works.

Reply Vivian Franklin April 9, 2018 at 7:30 pm

I have a question related to custom metal art. I have a customer who requested a custom piece of metal art that I designed based on a picture of a sail ship that the customer sent me. I don’t know where they found the picture. Anyway, I drew the ship, adding some water and a simple frame, then cut it using our plasma cam machine, finished the piece, and sold it to the customer. I did not copyright the design. The piece turned out nice, so I cut a few more of the designs and put them in our art gallery for sale. Is it fraudulent to sale the same design in our gallery? The cut is the same, the finish is different on each piece. My customer contacted me and said I was committing fraud since I charged her for custom artwork.

Reply Steve Schlackman October 10, 2018 at 10:13 pm

It really depends on the contract and the terms of the custom work. if the value of the work is being diminished, the person may have a case but on the other hand, selling it in the gallery may create more value. But asking to build something custom does not necessarily mean exclusive. It will depend on the intent of the agreement. You obviously didn’t know this was exclusive so that weighs in your favor.

Reply Johnie morgan May 12, 2018 at 1:31 am

I had someone paint a portrait of my father it was supposed to be a realistic painting when I got the painting it was not realistic does not look like my father and the colors were all wrong she went by the artist a picture of my father you can clearly see the colors are not right can I have another artist fix the painting

Reply Steve Schlackman October 10, 2018 at 10:03 pm

It depends on the contract but in general, you accepted it and therefore you agreed to own it as it was painted. Under the Visual Artist Right Act (VARA) you cannot make changes to the work, although this is a pretty simplistic explanation. In law, there are always nuances and other things to consider that might help get around the law

Reply Pete May 21, 2018 at 2:46 pm

This article is so convoluted and indirect. It answers no questions presented by any titles or descriptions of the article. Wtf.

Reply Andrew September 20, 2018 at 8:07 pm

If I buy an original work (oil painting) on an etsy-like website, can I then use the image on a my business web site? I see this was touched on in the scenarios, but not expanded upon.

Reply Steve Schlackman October 10, 2018 at 7:44 pm

You only have the right to the physical work, not the image itself. You can only make a copy of the image if it relates to something like making it available for resale or if it is shown as part of an art collection. But you can’t post it on your business website without a license for that use.

Reply Ann Strauch October 12, 2018 at 1:10 am

Hi. I’m hoping for a comment of advice. I’m an artist who just completed five, 10 x 20 foot detailed murals for a new company that my boyfiiend and I have imagined. He is a succesful business man and has started up several businesses. I quit my job and designed and painted 6 days a week without a paycheck. Now that professional photos of the paintings were taken with pro models, I was pressured to sign a non disclosure agreement. Saying I cannot use my paintings to promote my individual artwork. Now he has made a website to sell the artwork stating that I was a lead artist,” instramental” in creating the murals . Am I wrong to want credit for being ” THE ARTIST”? Do I have rights? We’ve broken up over this hot issue. Thanks, Ann

Reply Steve Schlackman October 17, 2018 at 12:50 pm

A lot depends on the contract here, and whether you were an employee of the company. If you were an employee and the workd=s were created specifically for the company, then the company would own the copyright. If you were not an employee, then you retain the rights to the images. Whether he has the right to sell them depends also on the intent when you created them, whether the company was supposed to sell them and what you were supposed to receive from the sales. There is also the right in the physical murals vs the right in the image itself.

As far as the document you signed, it also depends on the intent and whether you are still getting the consideration you were entitled to when you signed it.

There are a lot of nuances here so its hard to give you a definitive answer. But generally, the artist holds the copyright and you can decide how and when the works are shown and sold, outside fo the physical pieces which you may or may not have rights to depending upon your agreement when creating them.

The other issue is what to do about it. Assume that you do have the rights and he cannot sell them, then you have to hire an attorney to sue him to stop the sales. That costs money. you would be entitled to any profits he made as well but if he hasn’t sold any yet them you get nothing. So suing him depends on how much you can afford to spend vs how much you can gain.

I would ask a local attorney for a consult and have him or her look at all the documents and help you make a decision.

Reply Tugi March 2, 2023 at 1:46 am

Hi Steve,
Regarding Ann Strauch’s question, as I understand, the issue here is moral rights rather than copyright. As I see it, moral rights are not alienable. No one can appropriate the authorship and claim that they have done the work of someone else.