Art Law. Copyright

On the evening of February 5, VV Foundation invited art lovers, artists and experts in the field for a discussion to find answers to a row of important questions regarding artists’ rights, including copyright, which applies to every field of art. During the discussion, several significant aspects were highlighted in the protection of every artist’s interests and rights.

Already in 1971, art curator, publisher, bibliographer and collector Seth Siegelaub and lawyer Robert Projansky together produced The Artist’s Reserved Rights Transfer and Sale Agreement – a document that would protect every artist’s economic interests in various situations, including resale, reproduction and loaning. The agreement was made in an easy-to-understand language, translated and published internationally, ensuring it remains in use today. The questions of protection of artists’ rights, which lawyer Robert Projansky strove to answer already in the 1970s, remain relevant today. Hence, in their day-to-day work Latvian artists still encounter problems related to, for example, the legal aspects of author’s rights, the sale of works of art and their exhibition.

At the beginning of the discussion we talked about author’s rights. It is important to understand that author’s rights have the nature of moral and material rights. Material or economic rights are related to the sale and financial gain from the author’s work. These give the right to reproduce the work, and the artist may transfer and waive this right to third parties. Meanwhile author’s moral rights mean that the artist (author) has the right to be recognized as the author of their work, and require the use of their name or pseudonym along with the work and its copies or, to the contrary – demand the use of a pseudonym or anonymity. Likewise, the author has moral rights to prohibit any alterations of their work, that are contrary to the artist’s will and interests. Moral rights cannot be transferred to another person during the author’s lifetime. It must be added that author’s rights protect the execution of the idea, but not the idea itself.

In the following part of the discussion we looked for answers to the question of how to avoid the infringement of author’s rights and how to better protect them. While every case is unique, during debates we identified several practices that could help avoid complications. Upon the sale of a work, a written contract, whose content is the result of mutual negotiations, is necessary. In cases of complications, an agreement in e-mail may also serve as proof. The text of the contract should at minimum specify clearly what is being sold, what is the sum of the transaction and which material rights, if any, the artist transfers. In case of doubt, it will be assumed that material rights have not been transferred. It means that in the absence of an explicit agreement, the buyer may not, for example, reproduce the artist’s work digitally and sell its digital reproductions.

When selling a work of art, it must come with a certificate of authenticity, which is a document signed by the artist, including the author’s name and surname, the title of the work, its year of creation, technique used and an image of the work. Similarly, the provenance of the work of art must be documented. In those cases when the work of art comes into the possession of already the third or fourth owner, the contract between the original seller and buyer may be useful, as well as a list of exhibitions where it has been shown, reviews, catalogues and other kinds of information that characterise provenance. Such explanatory documentation increases the work’s value and can also help protect the author’s rights.

In cases when economic rights are transferred, it is possible to set a compensation for it. For example, if the buyer intends to reproduce the work on souvenirs, the parties may include a clause in the text of the contract, which stipulates that the author shall receive a commission from the income generated by the sale of souvenirs. Meanwhile in cases when, following the initial sale, the original work of art is sold in a public auction, the author has the right to receive a commission from the resale price.

It may be recommendable for the artist to entrust the sale of the work to a third party, which has no subjective opinion about the value of the work. This is understandable, since the artist invests a considerable amount of creative energy and love in the creation of the work, and therefore it may be difficult to look objectively at the work of art and its value. A third party may also be in a more neutral position to insist on the signing of a written agreement.

Over the course of the conversation answers were found to many relevant questions related to author’s rights, contracts and artists’ interests. The participants of the discussion agreed that more attention needs to be devoted in Latvian jurisprudence to day-to-day problems related to author’s rights, because many questions remain unclear and there is a lack of useful publications.

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