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Copyrights and Planning for Visual Artists

A painter or a photographer, born in 1950, who began creating visual works of art in 1970, continuing through today, will have works of art subject to different copyright laws.  Those works created before January 1, 1978 will be governed by the 1909 Copyright Act.  Those created between January 1, 1978 and January 1, 1989 will be governed by the Copyright Act of 1976, while those created on and after January 1, 1989, will be governed by the 1976 act, as modified by the U.S. adoption of the Berne Convention. The steps needed to secure and perpetuate copyrights vary with each different law. Sounds complicated, doesn’t it? It is.

The purpose of this article is not to provide a road map for determining what artists’ copyrights are in particular works of art, but to remind them of the need to plan for the management of those rights. Those rights include the exclusive rights to produce and distribute copies, and to display the work publicly.  Why are these rights important? They can come into play in a variety of instances: Someone may want to use a particular painting in a calendar, or a particular photo in an ad;  A movie producer may want to feature a work in a movie;  A museum may want to produce and sell postcards of a work in its collection;   An art historian may want to produce a definitive catalog of the artist’s work; or   A publisher may want to reproduce copies of the paintings or photographs to be able to sell books.  Proper management of the artist’s rights is essential for the artist, or his or her heirs, to maintain control over such events.

What happens to copyrights after the artist dies?  They can continue long after death.  There are different ways to address the issue.  One way is to establish an LLC or trust to hold them and manage them.  The artist can manage the LLC or trust during his or her lifetime and provide for continuation after death.  The beneficiaries of the trust or future participants in the LLC can benefit, while management of the copyrights can be centralized.

Does this have any real world applications?  Recently we were consulted about the copyright ownership of works of art created by an artist over an extended period of time.  A museum was interested in reproducing a painting in its collection as a postcard to sell in its gift shop.  The artist had died in 1994.  Determining the status of copyright ownership was a detective story with a cast of numerous players, set in several states, and shrouded in some uncertainty.  Despite the difficulties, we developed what we, and our client, believed to be a reasonable way of proceeding.

Not every artist will have the commercial appeal of Andy Warhol, Roy Lichtenstein, Norman Rockwell or Andrew Wyeth. However, some will engender commercial and artistic interest that lasts beyond their lifetime. Planning for copyright management is important for those who believe their art will outlive them and become part of their legacy.