Creator or Buyer: Who Really Owns Art?

When we purchase an item, whether it’s a blender, a car, or a really cool toboggan for snowmageddon races, the purchaser owns what they bought and can modify it to their heart’s content. Buying an artistic work, on the other hand and the ownership is joint, with some right going to the buyer while others are retained by the work’s creator. Whether the purchase is an original oil painting or a corporate logo, ownership rights are not the same as owning a toboggan, even if it is handmade from ancient oak found in the forests of Valhalla.

As you can imagine, many lawsuits are fought over ownership right for artistic works and other intellectual property, many of which would not have happened had the parties known the basic rules surrounding IP ownership. Although every case is unique and requires a thorough analysis (that why we have lawyers after all), looking at a few hypothetical scenarios, should help us map but some of the boundaries of ownership rights when purchasing visual art. Imagine the following situation:

• A wealthy executive purchases an oil painting from a living artist to be the centerpiece of his private library. After hanging the work, he feels he may have made a mistake in purchasing the painting, but thinks that if he cuts it into three smaller pieces, it might look better in the room.
• After some negative reaction to his idea, the executive instead decides it would be better just to sell it and consigns it to a reputable gallery for the sale.
• Before the gallery takes possession of the oil painting, a major fashion magazine rents the executive’s home for a photo shoot. The photographer uses the private library as the main setting and the oil painting is shown in the background of several photos, which the magazine publishes in its next issue.
• Impressed with the photographer’s work, the executive commissions her to shoot his home. A couple of years later, the executive puts the home on the market and gives the photos to his real estate agent to use in the listing. The agent’s brokerage posts the photos on its site and also u0loads them to a Multiple Listing Service.
• The brokerage is in the midst of a branding redesign including a new website. The company hires several freelancers to create the new designs, including some amazing drawings of streets in the area, which the company uses, along with photos of the executive’s home on its homepage.
• The Brokerage also makes large posters of the drawings that it sells on its website.

The purchaser in each of these scenarios may be infringing on the rights of the artist or creator. Let’s look at each scenario and see what the purchaser may have done wrong and whether there are any defenses to get them out of trouble.

by Steve Schlackman, Art Law Journal | Read more:
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