I think the question is self-explanatory, but I will give the background. My father-in-law, an amateur artist (he actually taught art in NYC) gave my wife an original painting. He died and his wife was his sole heir, then she died and my wife was her sole heir. My wife gave the painting to my son who is musing over the possibility of using it in a book he is writing. Does he need anybody’s permission (his mother’s presumably). But I am curious mainly about the original question since no one is going to raise any objection in this specific case.
The sale of a painting, drawing, original manuscript, etc. does not transfer copyright to the purchaser. Your son can sell the physical painting; he owns that, but he cannot legally copy it to use in his book without permission with the usual fair use exceptions which might or might not apply.
The answer to your title question is, for the most part, “no.”
Buying an original artwork gives you the right to own it, to display it, to resell it, and, with certain limitations under US law, to mutilate or destroy it. It does NOT give you the right to copy it.* The copyright generally remains with the artist, unless the sale of the artwork also involved an explicit transfer of the intellectual property rights in the work.
If i’ve understood the chain of ownership correctly in your case, i’m pretty sure that the copyright for this particular work currently rests with your wife.
The original copyright belonged to your father-in-law; that right transferred to his sole heir (his wife) when he died, even though your wife had taken possession of the physical artwork. When the artist’s wife died, the copyright was reunited with the artwork, under the ownership of your wife. Your son just needs your wife’s permission to reproduce the painting.
- It’s worth noting that there are certain exceptions in the law that allow for reasonable copying in order to advertise a work of art for sale. So, if you own a piece of art and want to sell it, you can take pictures for eBay, or for an auction catalog, or whatever, in order to provide an accurate likeness of the artwork for the benefit of potential buyers.
What’s the legal situation in a case like this where the mother, who owned both the painting and its reproduction rights, gave the painting to her son as a gift? Is the assumption that she is only giving the physical painting? Or is it assumed the reproduction rights are transferred with the physical painting itself?
Unless explicitly stated otherwise, the transfer is only of the physical object, not the copyright. As i understand it, the familial relationship does not affect the legal question on this point.
Obviously, though, it changes the practical effects considerably. Firstly, it would be trivially easy for the son to ask his mother for permission to reproduce the work, which would probably be granted. Also, copyright violations generally only enter the legal system in the first place if the copyright owner wants to pursue cases of infringement; something the mother would probably be disinclined to do, even if the son hadn’t actually asked permission.
Another point to consider is that, if there were some conflict between the parties, the copyright holder would not be able to recover much unless the work had been properly registered with the Library of Congress’ Copyright Office.
With rare exceptions, actual damages and additional profits are usually not worth filing a lawsuit over. But the statutory damages often are, because they can be up to $150,000 per infringement. Cite.
Furthermore, the work must have been properly registered before the infringement, and within three months of first publication, to obtain statutory damages:
If the painting has previously been published elsewhere, it is too late to get full statutory protection now. But if not, and there is a good chance your son may publish it in his book, it would be wise for your wife to register it now so that it has protection from possible future infringers who see it in the book.
Thanks for the answers. If my son uses it, he will ask my wife for permission and she will certainly grant it. So he can say, “Used with permission from my mother.” There are quite a number of her father’s paintings on the walls of our house.
I’d go with “Used with permission from the owner.” It sounds more professional than “My mom said it was okay.”
Signed, Epstein’s mother.
Is it true that transfer of copyright or permission to copy must be in writing in the US?
A transfer of copyright does generally have to be in writing. According to United States Copyright Office Circular 12 (PDF):
To be honest, i’m not sure how else you would do it. Wave a wand? Make an incantation? Pinky-swear? While copyright is not a physical thing, it’s something you own. Would you transfer ownership of a house or a car without a contract or a title or a deed?
You could probably give permission to copy without a written document, but if i were the party being given permission, i would want written evidence. I don’t want you forgetting that you allowed me to do it, or changing your mind down the road, and suing me for copyright infringement.
So, years ago, I did a bunch of drawings and gave them as gifts. If I was in the States, would that mean then that I would still have copyright over the artwork, but couldn’t sue for statutory damages if someone was copying one without permission?
It kind of makes you rethink all those stories about Picasso paying for meals with quick sketches. He obviously wasn’t signing documents to transfer over the reproduction rights. So, yes, the restaurant owned a Picasso sketch but they couldn’t monetize it other than by selling the original.
But how else do you generally monetize an original artwork, other than by selling the original?
I guess you could make t-shirts or something if you owned the copyright, but who’s going to pay a lot of money to license a minor work, even if it’s by a famous artist?
Picasso gave away sketches precisely because he was a recognized artist and his sketches had monetary value based on the fact that he was the artist. Sure, the only way to monetize it might be by selling the original, but you seem to be arguing that this is, in itself, a trivial or unimportant benefit.
Here’s a Picasso pencil drawing that’s going up for auction next week. The estimated price is $800,000-1,200,000.
If i were given a choice between physical ownership of this drawing, or copyright ownership, i’d take physical ownership every day. If i’m the physical owner, i can sell the physical artwork for about a million bucks. Do you really think you could make the same sort of money by licensing reproductions of this obscure and relatively insignificant work?
People buy reproductions of paintings all the time. It’s a thriving business.
You’re right that nobody will pay a lot of money for a reproduction. But the beauty of selling reproductions is that you can mass produce them. So you can make money selling the same painting thousands of times.
That’s assuming you’ve got a picture that thousands of people actually want to buy. Do people generally buy, in large numbers, reproductions of minor, unknown artworks? Do they do it on a scale that would exceed the amount of money you can get for an original Picasso?
I have to agree that selling the artwork would most likely be the most profitable way to go. Did you look at the pencil sketch mhendo linked to? It’s a pretty unremarkable work other than being by Picasso. I can’t see much of a market for it as a mass produced reproduction. I think the same could easily be said for other minor works.
Picasso’s Don Quixote is a different story. That is a work that has been reproduced over and over. Someone has certainly made a ton of money on that one so it depends on the appeal of the work, not so much the name of the artist. That’s why in most cases the way most people monetize them is by selling them.
Proving that art, like writing, obeys the simple guideline - you can get away with “breaking the rules” when you are able to follow them. Picasso was an accomplished artist before he began making incomprehensible free-form block art.
If the son were going to publish a book, I assume the publisher would want some solid form of assurance that art included in the book had all the necessary copyright releases. IANAL but I assume the publisher, as well as the author, is on the hook for any copyright violations? Web sites at least are covered by the DMCA for user-supplied content, provided they act on take-down notices.
Oral contracts are valid for many purposes, technically. They’re just very difficult to prove, so they’re worth very little in the case of a dispute.
Apparently not valid for this purpose since there’s a specific law.
Famous quote (Goldwyn?) “A verbal contract isn’t worth the paper it’s written on…”
IANAL but… The key in any lawsuit is the exact wording of a contract, followed by the interpretation of intent by the two parties. Unless there’s a recording, the wording and intent of a verbal agreement can only be inferred from future actions. If one side says there never was such an agreement, or the terms did not include such-and-such, how do you prove otherwise?
This is particularly tricky with copyright releases, I presume, because until the copier has done his part, published and it’s too late, the other side may claim they were not aware such an action as pending or supposedly agreed to.