Even When You Sell Your Work, You Still Own Your Work

My cousin Danny and his wife Lira are talented fine artists and painters. Every so often, they'll hold open studios at their home and I like to attend so I can see what they've been working on recently. During the last open studio, one of Danny's neighbors decided to buy a painting. After a very brief discussion over price, the neighbor went away and reappeared five minutes later with cash. He gave Danny the cash, they shook hands, and the neighbor walked away with the painting. The entire transaction took three seconds. There was no discussion regarding return policy, dissatisfaction with the art, or ownership over the art's copyright upon conveyance. Honestly, Danny didn't seem all that concerned about losing his rights to the work once it left his studio, and thus he felt no compulsion to memorialize the sale in writing with a discussion over terms of the sale.

And you know what? He was right not to be worried, because under U.S. Copyright Law, he still owns that work! You see, according to this circular put out by the U.S. Copyright Office:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent... Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the owner­ ship, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

In plain English, this means that when an artist sells his artwork to a buyer, he is only selling the physical object - the wood, canvas, and paint - not the artistic expression that created the painting. In order for the copyright to be conveyed along with the artwork, it must be done explicitly in writing. Therefore, even though Danny's neighbor is now the owner of the physical painting, Danny still owns the artistic expression of that painting, and retains full control over how to use, display, and promote that image.

[Author's note: This does not apply to artists who are hired to create a custom work of art. That's a work-for-hire scenario and the copyright belongs to the person who commissioned the work, not the artist who creates it.]

Here's another recent example: the wedding photographer I hired to make me look good on my wedding day retains the copyright to my wedding photos. If he decides to promote his business using images he took of me and my wife, I have no say about it, even though I own the physical prints and JPEG files of those photos (as long as I'm not defamed, but that's a blog post for a different time). So this awesome pic of me?

MEM_3921b

Even though it's my face and my killer smile, I can't make any money off of it. I should add that buyers DO retain the right to display the physical work for non-commercial purposes, but will of course open themselves to a lawsuit if they attempt to make money off a copyright they don't own.

So if you're a fine artist and you're concerned that by selling your work you lose all rights to it, don't worry. You will control that work for as long as you live (and for 70 years after you die), even if you've long since sold the piece of canvas it was painted on.

[Author's Update, Feb, 18th, 2013 1:17pm: Danny told me today that following a sale, he will provide buyers with a Bill of Sale informing them that the copyright remains with him. This is a good practice and I highly recommend that everyone out there adopt this or a similar practice. Too many artists think that once they sell the work they have to give up the copyright, and that's just not the case.]

Greg Kanaan

The [Legal] Artist, Boston, MA, USA