Intellectual property rights in art

Intellectual property rights in art

When it comes to a topic as complex as intellectual property in the art world, the starting point must necessarily be to define the nature of the works protected in this sector. Aside from photographs (whether considered photographs or mere images under our legal system), we are referring to plastic and graphic works, a broad classification that includes everything from classic considerations such as painting or sculpture to comics or landscape compositions. While this is the classical definition, in my opinion, and in addition to photography, it should be extended to certain audiovisual pieces, modifying their denomination to plastic and graphic.

In works of this nature, the concept of the “original” or the embodiment in the original becomes more important, as intellectual property rests with the author through the creation of the work (corpus mysticum) in relation to the support that houses it (corpus mechanicum). However, the support where the work is incorporated is the most valuable element for the author and the collector. While first-edition literary works (especially classic ones) may have significant social value, the original versus the mere reproduction marks a great difference in plastic works.

Like any work, the intellectual property rights for the author are inherent to the work by the mere fact of having created it, as long as the work is an original, intellectual creation and a result of human activity. For this reason, the author is the original holder of the economic rights and the moral rights of the work.

That is to say, the patrimonial rights of reproduction, distribution, public communication, and transformation, but also the moral rights, which are non-waivable and include the right to disclose the work, authorship, integrity, modification, withdrawal or repentance, and access.

For authors of plastic works, the right to the integrity of the work and the right of access to it are important. This relevance is due to the aforementioned importance of the original, as if the author has transferred the support of the work to a third party, there will be two holders of rights that may come into conflict, with the author on one hand and, to simplify, the owner of the work on the other.

Extensively addressed by case law, we find cases of alteration of the work by the owner, for example, through transfer, damage, or adaptations. Case law has evolved from a broader stance, in which any damage to the work was considered an attack on the integrity of the work for which the author must be compensated, to a more integrative stance where two wills must be balanced, taking into account criteria such as the alteration of the artistic conception, the location, and potential weather conditions.

Likewise, the right of access, which allows the author to access the unique or rare copy of the work when it is in the possession of another, in order to exercise any patrimonial or moral right, is relevant. However, this access is conditional because it will not allow the author to demand the displacement of the work, and the access will take place in the least inconvenient place and manner for the possessor, who will be compensated in case of damages and losses.

Additionally, these works enjoy a specific right, known as the resale right, which empowers the author of the work, as well as their heirs after the author’s death or declaration of death, as long as the work has not entered the public domain, the right to receive a portion of the price from any resale made from the first sale by the author, with the clarification that copies of artworks subject to this right, which have been made by the author or under their authority, are considered original artworks, provided that they are numbered, signed or duly authorized by the author, whether they are multiple originals or classical schools of paintings. It will also be a requirement for the resale to involve a professional art market participant as the seller, buyer or intermediary, and this will also apply in cases where these professionals act through information service providers.

This right will apply in cases where the resale price is equal to or greater than 800 euros (taxes excluded), and will not be applicable when the seller is a gallery that has acquired the piece directly from the author, as long as the period of sale and acquisition does not exceed three years and the resale price does not exceed 10,000 euros (taxes excluded). The amount that will correspond to the author is legally fixed, being a decreasing percentage of the resale price.

In conclusion, and as we have seen, as an original creation, artwork is protected by intellectual property in recognition of the intellectual effort of its creator, weighing the particularities of the work, where the support that contains the original work becomes relevant.

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