Copyright in the visual arts

For artists, fine art is not only constant experimentation, creating visual works and endless movement towards perfection, which requires a lot of time and emotional commitment. It is also an opportunity to monetize what brings pleasure.

Therefore, it is important to understand what the copyright of an artist, photographer, sculptor, designer is and what constitutes their protection. How to sell your works, transfer the rights to use them, and through what documents to process transactions?

Intellectual Property in Art: Legislative Framework and Validity

The intellectual activity of authors and copyright holders is regulated by the Civil Code of the Russian Federation: the fourth chapter describes in detail the provisions related to the use of the results of intellectual activity.

Sculptures, paintings, graphics, photographic art, calligraphy, design, graphic stories, comics and many other objects will be considered intellectual property in art. They refer to the results of intellectual activity (Article 1225 of the Civil Code of the Russian Federation) and are protected by copyright.

What does copyright in art mean? If the object has a creative component and is expressed in an objective form, for example, in the form of a painting on canvas, then it is granted legal protection upon the fact of its creation. Copyright for works of art does not need to be registered, the author will be considered the one who created it.

When a work is created, the author has two types of rights:

• Personal non-property - the right to a name, the right of authorship, the right to publication and the right to inviolability. They cannot be transferred to anyone and are indefinite, they are valid both during the life of the author and after his death.
• An exclusive right is a property right associated with any use of a work. It is valid during the life of the author and 70 years after his death.

Copyright to the paintings of a deceased artist can be transferred to his heirs: it is the exclusive (property) right that transfers, which will allow new copyright holders to dispose of the work.

After 70 years from the date of the death of the author, the work becomes an object of the public domain - it can be used by anyone and in any way. For example, the painting "Morning in a Pine Forest" was painted in 1889. Its authors Ivan Shishkin and Konstantin Savitsky died in 1898 and 1905 - since the death of the latter, 70 years are calculated from January 1, following the year of the author’s death, that is, in 1976 the picture passed into the public domain: it can be printed on T-shirts, modified and create derivative works based on it, use it in advertising, and so on. At the same time, within 70 years from the moment of the death of the author, the exclusive right may pass to the heir, who will dispose of the work, until the 70-year term of protection expires.

Among other rights, the author has the right of succession, which is inalienable, but passes to the author’s heirs for the duration of the exclusive right (Article 1293 of the Civil Code of the Russian Federation). According to this right, even if the artist sold the painting to another owner, he can receive a certain percentage of the further resale of this work: but subject to public resale by a legal entity or individual entrepreneur, for example, a gallery, museum, shop.

The percentage of the transaction is calculated based on its amount: if this is the first resale, the percentage is calculated from the entire transaction price, starting from the second resale - from the transaction price minus the price of the previous public resale.

Artist’s copyright for custom-made paintings

Regardless of the purpose for which the picture is created - personal use, gift to friends or sale - the author always has inalienable personal non-property rights, as well as an exclusive right (alienable). For example, the author created a painting by order of the buyer: copyright initially belongs to him.

A transaction in which the buyer buys the painting through a contract of sale does not mean that the exclusive right passes to him, which allows him to use the object. Ownership passes to him: he can own the canvas with the image and use it for personal purposes, for example, hang it at home and show it to friends. But he cannot commercialize, for example, create souvenir products on its basis, since there is no exclusive right.

Transfer of intellectual rights when selling art objects

If you just buy an object of art, the rights to it will not pass to you. In order to dispose of intellectual property in art, you need to obtain the exclusive right to it through the appropriate agreement.

The transfer of the exclusive right can be provided for in the contract of sale. Or to conclude a separate agreement on the alienation of the exclusive right, according to which the new copyright holder receives only the right to the work. Another option is to enter into a license agreement that provides for the limited use of an object of art: in a certain territory, for a specific period and in a limited amount.

When the artist transfers the exclusive right, he can no longer use the work for various purposes, for example, in advertising, if he did not provide for this in the contract. So, in 2008, the artist from St. Petersburg, Dmitry Shorin, transferred the exclusive right to his painting “Pulkovo does not accept” to the Erarta Museum of Contemporary Art, and in 2016 he painted an identical painting with the same name and distributed replicas, while no longer receiving permission from the museum. The court found that those created in 2016 are derivatives, that is, they are a processing of the original work, and fined the author in the amount of 50 thousand rubles for violation.

Societies for the Collective Management of Rights in the Fine Arts and Identification of the Author

Collective Rights Management Societies (CMOs) act as a “bridge” between right holders and users. The author or copyright holder grants the authority to the CMO, which allows him to dispose of licenses, collect royalties and provide legal support in disputable situations. There is no need to keep track of where and how the work is used: this is done by the CMO.

In Russia, for photographers, artists, sculptors, designers and authors of other works of art, there is the Association of Copyright Holders for the Protection and Management of Copyrights in the Field of Fine Arts (UPRAVIS). It controls the resale of works of art as objects of copyright by galleries, museums, art salons, as well as any use in print, the Internet, television, film, and industry. Collects, distributes and pays royalties.

How to keep the copyright of digital paintings?

Digital paintings are created using computer tools, such as special software or a graphics tablet. Such works are formalized in the form of an electronic file, and if there is a creative component, they will also be protected by copyright. Therefore, again, it is not necessary to formally additionally “retain” or register copyright for sketches, layouts, collages, art, digital paintings, but in practice everything is different.

Artist copyright infringement and how to protect them

Despite the fact that works of fine art are copyrighted upon creation, it is still worth fixing the authorship of works of art, since copyright infringements in this area, unfortunately, are not uncommon. Starting from the publication of other people’s pictures on social networks and ending with printing on souvenirs.

For artists, illustrators, photographers, designers and authors of other objects of fine art, the Art Cloud service was specially created, which allows you to fix the authorship of works. Choose the size of the cell 200 MB, 1 GB or 5 GB and the storage period, pay and download the required number of works.

When uploading images, the date and time are fixed, the author is assigned the time priority, according to which he created this work earlier. Information about the download enters the public-state blockchain infrastructure for managing intellectual property rights - the "RCIS.RF network", which was created specifically for the field of intellectual property. Object and transaction data cannot be changed or faked. If a dispute arises, you can order a certificate of deposit for the desired image, which will confirm the authorship and become an argument for stopping the misuse of the object.

Outdated files can be deleted and supplemented with new ones - each time the authorship will be recorded. To avoid situations in which, for example, submitted works for participation in an exhibition will be quietly downloaded and used by third parties, you can generate and transfer a special link for viewing and downloading. And also put down a QR code on the disclosed objects with information about the object, authorship and date of loading.

Another form of protection is n’RIS digital escrow. Upload a file with a work in electronic form into a secure cell, choose the storage period for the work, pay for the service and receive a document confirming the right. The certificate will also indicate the date and time the cell object was loaded.

Other ways to protect your work include copyright ©, a disclaimer about liability for illegal use of the work, watermarks, technical tools that prohibit screencasts. In practice, they don’t work very well, because intruders will always find a way to copy your creation. But violators usually react immediately to the right-confirming certificate of deposit, and stop illegal actions.

Consider proactive safeguards such as digital escrow so that when you find yourself in a contentious situation, you have something to show against infringers. Whatever you create, remember that your work is protected by copyright and no one has the right to use it without your permission.