Sold, But Not Surrendered: Persistent Legal Rights In Completed Artwork

The goal of a majority of visual artists, be they starving or not, is to sell what they have produced. Revenue and exposure are critical to sustaining careers in art and design, and as such artists (often grudgingly) must surrender control of the creative process and/or fruits of their labor. However, even when art is created at the direction of an employer or customer, or title has been transferred to an artist’s original work, certain legal rights in the product do persist.

For instance, an artist may generally use work created for an employer or customer, even if the purchaser owns the copyright thereto, in a portfolio to promote his or her other work. The persistence of these rights would depend on the nature of use. Principally, it must be clear that the artist is not promoting the portfolio piece itself for sale, but rather offering it as an example of what a prospective customer may expect if the artist is engaged for a new assignment. Further, the artist cannot be seen as competing with the copyright holder in any commercial sense. Circumstances do arise, however, where portfolio use rights might be contested, such as when the employer or customer wants exclusive public credit for the work itself. The U.S. Postal Service is infamous for requiring that artists agree not to show any works created for the USPS, even should the USPS choose not to publish the particular work that was submitted. The safest way to avoid a legal battle is to craft an explicit work agreement, contract, or bill of sale. At a minimum, it is good practice to communicate with an employer or customer before including any previously sold works in your portfolio.

Perhaps the most interesting (and little known) persistent legal protection afforded to visual artists arises from an obscure federal law known as VARA: the Visual Artists’ Rights Act of 1990 (17 U.S. Code § 106A).  VARA amends the Copyright Act and provides a measure of moral rights protection to certain artists. Recognition of moral rights originates with the French legal concept of le droit moral. The concept of droit moral focuses on the personal and spiritual, rather than economic, interests of an artist. VARA, in turn, gives artists (1) the right of attribution; (2) the right of integrity; and (3) the right to prevent destruction of works of “recognized stature.” The scope of VARA is very narrow, protecting only certain types of visual art including paintings, drawings, prints, and sculptures produced in limited editions of 200 or fewer copies. In Louisiana, this is extended to 300 copies by virtue of overlapping state law (La. RS 51:2152 et seq.). The law does not apply to work prepared under contract for advertising or trade use unless the contract explicitly provides. VARA also contains special provisions for visual art installed in buildings.

Basically, an artist may invoke VARA protections to prevent or to seek compensation for damages arising from intentional mutilation, distortion or modification of a piece of his or her work of fine art that has attained public stature. This would take the form of petitioning the court for injunctive relief (if the destruction/alteration has not yet taken place) or a suit for damages. Again, a protracted legal battle along these lines can be avoided by spelling out terms in writing in advance of providing your services or making a sale.

When your art is your career, it’s always wise to remain mindful of persistent rights in your work. Whenever you’re able to, consult with an attorney before fully surrendering any rights. At a bare minimum, always spell out to your employer or customer exactly what you are selling and what you intend to retain.





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