3 - Artists’ Rights in the Works They Create

Summary

Works of art, in addition to being treated at law as tangible personal property, also contain creative expression generally treated as intellectual property. This chapter considers the rules governing art as intellectual property. The chapter first presents copyright law as applied to visual art and how copyright infringement is established and defenses to infringement actions, including the fair use defense, especially as it applies to appropriation art and art that parodies other works. It then addresses how trademark law and the right of publicity (the right of individuals to control the use of their name, image, or likeness for commercial purposes) impact visual art. The chapter next examines resale royalties for art--where artists receive some portion of the price when their works resell in the secondary market--and the limited application of resale royalties in the U.S. Finally, the chapter explains artists’ moral rights,which allow artists to prevent the alteration or destruction of their works after they are sold and to control the use of their name in association with an artwork they did not create or that they created but that has been altered.