Translated from the French term “droit moral,” moral rights is a European concept which ensures that creative authors in all artistic disciplines can control what happens to their works. Moral rights are separate from the economic concepts of owning the work itself or its copyright. Moral rights protect the author’s reputation and the personal value of the work to its author. Moral rights stay with the author. In most jurisdictions, they cannot be transferred or waived.
In the United States, moral rights apply only to certain works of visual art. They are protected by the federal Visual Artists Rights Act (VARA) and various state laws. Under VARA, a work of visual art is defined as “a painting, drawing, print, or sculpture,” or a “still photographic image produced for exhibition purposes only” – all either existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. 17 U.S.C. § 101. California law protects a slightly different set of works: “an original painting, sculpture, or drawing, or an original work of art in glass of recognized quality.” Cal. Civ. Code § 987. Commercial works, such as advertisements, books, magazines, electronic publications, posters and other unlimited reproductions of fine art, and works made for hire, are not covered.
The specifics of moral rights granted to visual artists also vary by jurisdiction. In general, they include:
The right of a visual artist to claim authorship of her artwork, the right to prevent use of her name as the author of any work she did not create, and the right to prevent use of her name as the author of a belong to the artist who created the artwork, regardless of who owns the artwork or the copyright in the artwork.
the right to prevent intentional distortion, mutilation, or other modification of the artwork, and to prevent the intentional or grossly negligent destruction of a work of recognized stature. There are various exceptions, including modifications caused by conservation or preservation of the work, and special provisions for dealing with a work, such as a mural or embedded sculpture, that cannot be remove from a building without causing substantial harm to the work.
Under federal law, moral rights last for the life of the artist. Under California law, they last for life plus 50 years. Under both statutes these rights cannot be assigned away, but they can be waived. Unfortunately, it is becoming common practice to include waiver of moral rights in contracts which commission works of fine art.
California’s resale royalties law was passed to ensure that artists will benefit when their artworks increase in value. Cal. Civil Code Sec. 986. With a few exceptions, it requires anyone who resells a work of “fine art” at a profit to give 5% of the resale price to the artist. Under this law, “fine art” means an original painting, sculpture, drawing or work in glass. The royalty is not payable on sales under $1000, or, if an artist first sells the work to a dealer, on subsequent sales between dealers during the next 10 years. If the resale royalty applies, and the resale is made by a dealer or other agent (rather than a private person), the agent must withhold the 5% royalty for payment to the artist. If they can’t find the artist in 90 days, the payment is made to the California Arts Council, which keeps looking for the artist. The artist has 7 years to collect such royalties.
The right to collect resale royalties can be assigned, but it cannot be waived, except by a contract that sets a higher royalty rate. This right lasts for life of the artist plus 20 years.
Absent a well-written consignment agreement, general laws regarding commercial relationships may create unexpected and undesirable consequences in the gallery context. For example, if the gallery goes bankrupt, sometimes the consigned artwork will be considered part of its inventory, and the artwork will be taken and used to pay off the gallery’s creditors instead of being returned to the artist.
In reaction to such problems, some states have special laws regulating consignment agreements for artwork. California’s law (Cal. Civ. Code Section 1738 et seq.) applies to a “painting, sculpture, drawing, work of graphic arts (including an etching, lithograph, offset print, silkscreen, or a work of graphic art of like nature), a work of calligraphy, or a work in mixed media (including collage, assemblage, or any combination of the foregoing art media).” It ensures that such artworks cannot be subject to claims by creditors of the gallery. It requires galleries to hold proceeds from the sale of an artwork in trust for the artist, so the artist must be paid first before the funds can be used to pay any other bills.
California law also makes galleries responsible for any loss or damage to the artwork while its in the gallery’s possession. The gallery must pay the artist the full market value of the lost or damaged artwork, not just what the artist would have received after the gallery’s commission. These provisions of California law protect artists even if they don’t have a written consignment agreement, and these protections cannot be waived.
California law requires art dealers to provide a “certificate of authenticity” with every fine art print or multiple that they sell (Cal. Civil Code Sec. 1740-45.9. This law was passed in response to massive fraud in the fine arts print market, especially with respect to forged Dali prints. Several other states have similar disclosure laws.) The certificate must provide specific details about the nature and provenance (history of title) of the print. If a dealer fails to provide one, or provides an inaccurate certificate, the buyer is entitled to return the print for a full refund, or three times the purchase price if the dealer’s conduct was willful.
The certificate of authenticity must include, for example:
Private artists are not required to provide an official certificate, but if an artist sells or consign her work to a dealer, the dealer will want all this information from her.