Managing an Artist’s Legacy
What is current best practice when designing and implementing a strategy to preserve, promote and enhance the value of an artist’s work both now and into the future?
Some artists, and subsequently their estates, have prospered, ensuring a vibrant and long-lasting legacy, while others have dwindled or died with them, disappearing without trace. The difference between success and failure often rests with the artist formulating their own vision for their legacy and the early adoption and implementation of said strategy.
What is the Law?
Highlights for the UK
Artist resale right (ARR)
Extract from Lexology: Artist's resale right
The artist’s resale right (ARR), also known as the droit de suite, applies in the UK. The ARR entitles authors of original works of art in which copyright subsists and their successors in title to a royalty each time one of their works is resold through an auction house or an art market professional. The right to this royalty lasts for the same period as copyright in that work of art. There are certain exceptions to the ARR, including where the work being resold was bought directly from the artist less than three years previously and it is being resold for €10,000 or less. In addition, sales between private individuals, without the use of an art market professional, or to public, non-profit making museums do not attract royalty payments.
The ARR only applies when the sale price reaches or exceeds the sterling equivalent of €1,000 and is calculated on a sliding scale as follows:
Royalty Resale price
4% up to €50,000
3% between €50,000.01 and €200,000
1% between €200,000.01 and €350,000
0.5% between €350,000.01 and €500,000
0.25% in excess of €500,000
Royalties are also capped so that the total amount of the royalty paid for any single sale cannot exceed €12,500. ARR is exempt from VAT.
Collective management of ARR is compulsory in the UK. The two main collecting societies are the Artists’ Collecting Society and the Design and Artists Copyright Society, which collect and distribute the royalty. Individual artists and estates cannot seek payment directly from art market professionals.
Artists moral rights
Extract from Lexology: Moral rights
What are the moral rights for visual artists? Can they be waived or assigned?
Under English law, moral rights for visual artists are personal rights that apply to literary, dramatic, musical, or artistic works and also to films. They were introduced by the CDPA and therefore only apply to artists living on or after 1 August 1989.
The rights are as follows:
the paternity right: the right to be identified as the author or director of a copyright work. This right lasts for the life of the author plus 70 years;
the right of integrity: the right to object to derogatory treatment of a copyright work. This right lasts for the life of the author plus 70 years;
false attribution: the right not to have a literary, dramatic, musical or artistic work falsely attributed to him or her as author and not to have a film falsely attributed to him or her as director. This right lasts for the life of the author plus 20 years; and
the right of privacy: the right to privacy of certain films and photographs. This right lasts for the life of the author plus 70 years.
Moral rights can be waived and contracts often seek to do so. If a waiver is agreed, its terms should be specific so as to avoid uncertainty and should include, among other things, a detailed description of the specific work, whether the waiver is subject to conditions or subject to revocation, and whether it extends to licensees and successors in title to the owner (or prospective owner) of the copyright in the work.
Moral rights cannot be assigned; they will remain with the creator of the work and pass to the artist’s estate on death.
Plagiarism and copyright infringement
What happens if someone blatantly copies your artwork and then sells the copies?
In the UK if you copy another artists’ work it is illegal to sell it as your own without permission from the original artist as this would infringe their copyright. This may not be the case in other countries.
What to do if you believe a copycat artist is acting illegally
1. Be clear - did the person copy your exact piece of artwork?
You cannot copyright a particular artistic style, subject, or idea etc, only final pieces of work that are your own.
2. Has your work been copied detail by detail for selling?
If yes, gather as much information/evidence as you can on how the person has undertaken and created the copy.
3. How many pieces of work they have copied?
Gather evidence.
4. Can you determine how much profit they might have made from the plagiarised work?
Gather evidence
When should you consider taking legal action?
If you can show significant evidence of plagiarism and the copycat artist is making substantial profits for themselves, you should consider taking legal action.
Remember copyright in your artistic work lasts for 70 years from the end of the year in which the originator dies. An exception to copyright ownership is work solely computer-generated.
To protect yourself in case you ever need to make a copyright infringement claim, always:
Keep records of the work you create – ARTWORK ARCHIVE is an excellent resource for this.
Photograph your work and time stamp.
Sign and date your work front and back if possible
Use the © motif on certificates and documentation and your name and the date, to assert copyright ownership and to deter potential copycats.
Watermark photos before loading online.
Consider uploading low-resolution photos only.
Read the terms and conditions of each social media platform before posting images.
Confronting copycats
What is your relationship with the person who has copied your artwork?
If a simple conversation cannot successfully resolve the matter, in the first instance, send a polite email outlining your issue and evidence and respectively ask them to cease and desist immediately.
If this doesn't have the desired effect and you do decide to take legal action, and blatant plagiarism is proven, you might be entitled to collect the profit the offender made from your artwork, as well as ‘statutory damages’.
But be aware – taking legal action can be expensive, so ensure you have comprehensive evidence in place.
Consigning items
Extract from Lexology: Protection of interests in consigned works
How can consignors of artworks to dealers protect their interest in the artwork if the dealer goes into liquidation?
The entry of a company into a formal insolvency process does not defeat the proprietary interest of a third party in assets held by the company. A creditor who can show that it (rather than the insolvent company) has beneficial title to an asset is entitled to have the asset transferred to it. If the liquidator sells the asset, the creditor is entitled to an account of the realisations made in respect of the asset.
To protect their interest and to avoid any dispute with the liquidator or other creditors over the basis upon which the dealer is in possession of the artwork, consignors ought to record the terms of the consignment in writing.
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