ArtSales.com.au respects the rights of all artists and copyright holders. Consequently,
all works that appear on this website do so with the consent of the artist or copyright
holder. No image or information displayed on this site may be reproduced, transmitted
or copied (other than for the purposes of fair dealing, as defined in the Copyright Act 1968)
without the permission of ArtSales.com.au (in the case of copyright materials owned
by ArtSales.com.au) or the artist (in the case of copyright materials owned by the
artist). Contravention is an infringement of the Copyright Act and its amendments.
Requests for publication rights to any works on this site should be detailed in
an e-mail by clicking on
which will then be forwarded to the artist.
Introduction
"I bought it, it's mine, so I can do what I like with it?"
Most people mistakenly assume that the statement above is true, and there are a
few legal and moral issues, of which buyers and sellers of artworks should be aware.
The points below are offered merely as a quick guide and are not intended to replace
proper legal advice.
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Ownership of physical property
The ownership of an actual piece of artwork ? the physical property - is usually
pretty straight forward, (leaving aside the murky area of contested estates of deceased
artists) with the artist owning the work until a fee, designated by the artist,
is paid by the purchaser or commissioner.
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Ownership of intellectual property
The ownership of copyright ? the intellectual property ? is a little more abstract
than physical ownership, and it must be stressed at this point, that they are two
separate properties and sale of one does not imply sale of the other. Copyright
does not require the formality of registration, and is automatically assigned to
the artist upon creation of an original work, usually remaining in force for a period
of 50 years after the death of the artist.
Australian artists acquire international copyright protection through Australian
membership in the two major international copyright treaties: the Berne Convention
for the Protection of Literary and Artistic Works and the Universal Copyright Convention.
Between these two conventions, Australia has copyright relations with over 100 countries.
For example, an Australian work will be protected in the US under US law and vice
versa.
Basically, copyright allows the creators of artwork the exclusive right to gain
economically from their creation by controlling the reproduction of their artwork.
The sale of artworks through ArtSales.com.au would typically be to private individuals
for their own personal appreciation, but it is conceivable that works purchased
here may be reproduced for the purposes of economic gain. Artists should be aware
that copyright is valuable and should be viewed in the same way as other property
rights, and should not to be underestimated or given away.
Two examples might highlight the value of copyright.
•The Nike swoosh logo was designed by a student
with little understanding of
the value of corporate branding and the infinite reproduction of their work, and
assigned all rights for the reported sum of $250.
•Bill Gates through his company, Corbis, and
J. Paul Getty's grandson through
his company, Getty Images, are currently involved in a race with each other to purchase
the intellectual rights as cheaply as possible, to as many of the world's available
images as they can. There are no doubts in their minds as to the value of ownership
of reproduction rights, maybe sometime in the future even to an image that you have
created.
As part of the ongoing education of artists and buyers, ArtSales.com.au's standard
purchase agreement includes an acknowledgement clause for the need to purchase copyright
should the purchaser of the physical property wish to benefit economically through
the reproduction of the purchased work.
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Assigning and licensing copyright
Copyright can be dealt with in two ways. It can be assigned (sold or transferred)
to another party, or it can be licensed wherein the licensee obtains the right to
use the work in a particular way, but not ownership of copyright.
A license may be exclusive or non-exclusive. An exclusive license gives the user
sole rights to use the work in the ways covered by the license. A non-exclusive
license leaves the copyright owner free to grant the same permission to others,
and to use it themselves.
To be effective in law, copyright ownership assignments and exclusive licenses must
be in writing and signed by the copyright owner. Non-exclusive licenses need not
be in writing but it is advisable to do so. There is no legal right to sub-license
unless it is dealt with specifically in the agreement, and any sub-licensing should
be subject to the artist's/rights holder's consent.
Licenses can also vary in term up to the maximum term of the life of copyright,
and well drafted licenses should always provide termination clauses, which could
specify that if the licensee fails to exploit the artwork within a certain time,
or bankruptcy or winding up of the licensee occurs, then copyright rights granted
by the license will return to the artist.
Rights cannot be transferred by the licensee without the artist's permission, since
the licensee may benefit from re-use fees that more appropriately belong to the
artist.
ArtSales.com.au offers contract guidelines for the
commercial use of images found on this site including:
•Rights managed
•Rights ready
•Royalty free
•Editorial Use
•'Mock-Up' Use
For more information on commercial use and licensing agreements click here.
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Copyright infringement
Copyright infringement may occur when all or a substantial part of an original artwork
is reproduced in any material form without the authority of the copyright owner.
Infringed copyright owners have all the remedies available to other owners of property.
Usually they seek to stop continuation of the infringement as well as compensation,
which is usually financial, but may depend on the owner's wishes (for example a
public apology and delivering up of the remaining copies.)
Financial compensation is usually sought in the form of damages through the courts.
Alternatively, the court may order for an account of profits made from the illegal
use of the artwork. Copyright owners are also entitled to seek conversion damages,
and treat the goods bearing the copyright infringement as having been stolen. Copyright
owners may also apply for the delivering up of infringing copies of their work.
If you believe that your work has been copied or used on this site in a way that
constitutes copyright or trademark infringement, please follow the procedure on
our Notice of claim for copyright or trademark
infringement.
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Moral rights of artists
Moral rights are personal rights, and as such, are not enforced by law in Australia
at present (although this situation may be about to change.) The two most important
moral rights are those of integrity and attribution.
Right to Integrity
The 'right to integrity' maintains that works created by the artist should not be
intentionally destroyed, mutilated, or defaced without the consent of the artist,
or which the artist could not reasonably refuse to permit. This includes stripping
artwork for scanning or reproduction, or adapting artwork physically or electronically.
Buyers should undertake to maintain the property of the artist and protect it against
deterioration and misuse. If repairs are needed, the artist should be immediately
consulted and given first option to carry out these repairs. Artists must be consulted
if their artwork is to be reproduced in other media and an agreement specifically
entered into with respect of such use. Trivialising an artwork reflects adversely
on the integrity and commercial value of the work, the artist's reputation, and
the use for which it was first intended.
Right to Attribution
Artists should also be clearly attributed whenever their work is published or quoted
on, or cited as reference, if that is their wish. Alternatively, an artist may expressly
choose to remain anonymous, or use a pseudonym, and these choices should also be
respected. Obviously, this 'right to attribution', should be used wisely, and with
maturity and discretion by the artist.
Right to Royalty: Droit de Suite
In Australia, when an artist's work is resold for a profit, the artist does not
enjoy any part of that profit. This situation is different notably in France and
other parts of Europe and is currently under consideration for the US and Australia.
When Robert Rauschenberg sold a work in 1958 for $900, he was unlikely to anticipate
that the work would resell in 1973 for $85,000. The question is, is the bravery
of creation worth so much less than the bravery of purchase. Rauschenberg didn't
think so and many others, not just artists, believe that this situation is clearly
unfair.
As a means of partial redress, ArtSales.com.au intends to recognise the right to
royalty. Generally speaking, resale royalties are at 5% of the gross resale price
as long as the profit is over $1,000 and the artist is still living. ArtSales.com.au
has plans to pay artists royalties on this basis for works resold through this site
regardless of whether or not the work was sold through ArtSales.com.au previously,
or whether or not the artist has ever sold through ArtSales.com.au. However, artists
interested in supporting this right will need to be contactable by registering their
name and contact details with us at