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Understanding your rights after your artwork is sold

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Understanding your rights after your artwork is sold

When an artist spreads the last daub of oil paint on the canvas, or a photographer finally captures the perfect scene, the sense of pride and ownership is profound.

That feeling does not simply go away after the artwork changes hands. Part of the artist's heart and mind is still invested in the art. But do artists actually retain any legal rights to their creations after the pieces are sold?

In many cases, the answer is yes. Visual artists may still retain "moral rights," even if they sell the artwork in question.

Federal And State Law Both Acknowledge 'Moral Rights'

Both the Visual Artists Rights Act of 1990 (VARA) and the California Art Preservation Act (CAPA) protect the moral rights of visual artists. In other words, if you are a painter, sculptor, photographer or other artist who creates limited-edition visual artwork, you retain certain rights over your creations.

The law gives you the right to decide when your artwork is finished and ready to display. It also gives you the right to identify your name with your artwork.

Most significantly, it gives you the right to prevent the tangible copy of your artwork from being mutilated or otherwise physically distorted or destroyed - even by the new owner of the piece. For instance, if the owner of a building wants to destroy a mural of yours that is protected by VARA, he or she must attempt to notify you in advance so that you have a chance to remove it from the wall to which it is affixed.

One California Artist Received More Than A Million Dollars

In 2008, California artist Kent Twitchell received a $1.1 million settlement after he sued the U.S. government and 12 other parties for painting over a 70-foot-tall mural he had created in Los Angeles.

No, The Beach-Themed Posters You're Selling To Tourists Don't Count

Mass-produced artwork (more than 200 copies) is not protected by VARA. Likewise, the law does not grant you any moral rights to maps, technical drawings, posters, videos, books, marketing materials or other creations that are not considered "fine art" or that are not visual in nature.

Other Exceptions Abound, So Consult A Professional

The interplay of federal law, state law and legal precedent is complex, and loopholes and waiver provisions are common. Therefore, it takes a legal professional to analyze the details of your particular situation and provide trustworthy guidance. If you believe your rights as an artist may have been infringed, consider consulting an attorney well versed in this niche area of intellectual property law.

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