Terms of Use

An artist owns a copyright as soon as she fixes a minimally creative, original work to a tangible medium (17 U.S.C. § 101)

Copyright ownership is distinct from ownership of the physical piece of artwork. When an artist creates a painting, the artist owns both the copyright in the artwork, and the physical artwork. Ownership of the copyright is an intellectual property right. Ownership of the physical artwork is a personal property right. A sale of the physical artwork does not transfer the copyrights in the artwork. Likewise, transferring the copyright does not necessarily transfer the personal property rights in the physical artwork.

A copyright provides the copyright owner with a number of exclusive rights, including the right to copy the work, distribute the work, adapt the work, publicly perform the work, and publicly display the work. Only the artist can reproduce, adapt, distribute, and publicly perform and display the artwork. (1) The copyright owner must enter into a written agreement, specifying the rights being transferred, to sell these exclusive rights. (2)

Summary When an artist sells physical artwork, the copyrights in the artwork do not transfer to the purchaser. The copyright owner must enter into a written agreement, specifying the rights being transferred, in order to sell a copyright. The artist retains the copyrights in the artwork, and the rights of attribution and integrity in the sale of the physical artwork.

1) 17 U.S.C. § 106 (2012). For a helpful explanation of these exclusive rights, and any respective restrictions, see Ralph E. Lerner & Judith Bresler, ART LAW: THE GUIDE FOR COLLECTORS, INVESTORS, DEALERS & ARTISTS 933 (Practising Law Inst., 4th Ed. 2012).

2) 17 U.S.C. § 204.