Legally Protecting Your Artwork

Attorney Bill Frazier, who specializes in art-related legal issues, spoke to OPA artists at the national exhibition in Fredericksburg, Texas.

He told the audience that it is very important to have a written agreement rather than just a verbal agreement with their galleries. A number of artists ran into serious issues, and resulting losses, when galleries went bankrupt and the artists’ works were considered to be assets of the galleries and not the artists. “Every artist and gallery should have some kind of written agreement about the artwork.”

Empty Gallery

Check to see that a gallery is displaying your artwork and make sure your contract states that the artwork is not an asset of the gallery.
Image courtesy of aopsan at FreeDigitalPhotos.net

Among the items that should be in the agreement, Frazier recommends that the contract clearly identifies the artwork, medium and size, and that it also stipulates who pays for framing and advertising, whether discounts may be offered and who absorbs any discounts the gallery may offer to a client, and what would happen in the event of a bankruptcy. He said to be sure the contract states that the artwork is not an asset of the gallery. Most states have consignment laws that deal with this relationship. This is important because otherwise, he said, the laws that govern most other products in retail establishments also govern art. Above all, he added, “When you have an agreement presented to you, make sure you understand the terms of the contract before you sign.” To protect yourself against losses, Frazier said to “keep up with your galleries. Go to the gallery – make sure they are showing your work. The bottom line is: this is a business. You are producing a product.”

Copyright

For full legal protection, include your name, copyright symbol and year of completion on every image and on every web page.
Image courtesy of Stuart Miles at FreeDigitalPhotos.net

Frazier also discussed some of the common misconceptions with copyright. He said that while many artists believe their signature on an artwork is sufficient, “for full American legal protection put the copyright symbol on the front of the image. You do not have to, but I recommend to my US clients that they do it.” “The only term that is legally sufficient is the word ‘copyright’ or the copyright symbol: ©.” “It is still not going to keep anyone from stealing anything off your website, but it’s better than nothing.” To avoid internet piracy, he said, “The best you can do is try to have a standard practice on your website of using the copyright notice, which is your name, copyright symbol and year of completion on every image and on every page.” He recommended artists check the website FBI.gov for more information on intellectual property theft. But in order to sue for copyright infringement, it (the piece of artwork) has to be legally registered with the copyright office, said Frazier. More information is available on their website at www.copyright.gov. He also reminded the artists, “One thing to remember about copyright (law) is that it changes frequently.” And, he adds, you have five years to file for copyright registration from the date of completion of the artwork.

Frazier also cautioned the OPA artists to be careful if selling their work by auction. “A lot of problems occur for artists at auctions. I suggest you never participate in a ‘without reserve’ auction.” Then, he adds, “if the auction house does sell it below the reserve price, they have to make up the difference to you.” A ‘with reserve’ auction is one in which there is a reserve price below which the artwork cannot be sold.

Montana attorney Bill Frazier specializes in art-related legal issues representing artists, galleries, collectors and museums. He is author of more than 350 articles for national art and legal publications, including a regular column in Art of the West Magazine.

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  • Diana Moses Botkin

    Please give a reference for the statement in this article that the artist has “five years to file for copyright registration from the date of completion of the
    artwork”. I have never seen this particular requirement in any copyright information from the Library of Congress.

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