Art Law by Ann Avery Andres, Esq.
Reproduction Rights for Fine Art
You paid $10,000 in 1989, for an original painting at a gallery in Santa Cruz, California. Now it's 1999 and your friend wants to use a reproduction of your art in an advertisement of their landscape business in a garden magazine. She asks you if she may do so and you respond,: "Sure. It's a beautiful painting." This is no problem under California law? True or False?
False. Under California Civil Code 982, when a person buys a work of fine art, the reproduction rights remain with the artist or the artist's heirs, legatees, (persons taking under a will) or personal representative until it passes into the public domain unless there is an express written agreement otherwise. When you make prints of your artwork and/or use reproductions of it, you are infringing on the artist's rights and the artist has a right to be compensated. If you anticipate such a use, it is best to request the reproductions at the time you purchase the artwork. Usually, artists will grant such rights unless they have intentions to make prints for their own purposes.
Fine art and right of reproduction defined...
Fine art is defined as any work of visual art, including but not limited to, a drawing, (including an etching, lithograph, offset print silk screen, or a work of graphic art of like nature), crafts (including crafts in clay, textile, fiber, wood, metal, plastic, and like materials, or mixed media (including a collage, assemblage, or any combination of the foregoing art media). Right of reproduction is defined as including but not limited to, the following: reproduction of works of fine art as prints suitable for framing; facsimile casts of sculpture; reproductions used for greeting cards; reproductions in general books and magazine not devoted primarily to art, and in newspapers in other than art or news sections, when such reproductions in books, magazine and newspapers are used for purposes similar to those of material for which the publishers customarily pay; art films, television, except from stations operated for educational purposes, or on programs for educational purposes from all stations; and posters, billboards, films or television.
The exceptions listed above where the artist's right to reproduction is NOT infringed are consistent with the "fair use" doctrine of copyright law where a person has the right to use an image for educational and critical purposes.
When you said, "Sure" to your landscape friend, you gave away a right to reproduce that you did not have. However, it is the responsibility of the landscape friend to ascertain that you did actually have the reproduction rights and it is she who will have to compensate the artist unless you have deliberately misled your friend in some way as to your ownership of the right to reproduce. Remember, however, that laws vary from state to state. Check your local state law regarding its right of reproduction.
© Ann Avery Andres, 1999
Ann Avery Andres practices law in Santa Ana,CA. She may be reached at 714.558.7775. Her address is 322 West Third Street, Santa Ana, CA 92701.
Resource Library Editor's note: Laws regarding the content of this article may have changed since it was published in 1999. Please seek legal counsel for current information.
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