Artists' Bill of Rights

By Peter H. Karlen Attorney at Law Back to Home

The following represents an Artists Bill of Rights for California artists based upon federal and California legislation of the last two decades. Not all statutory and case law is represented, and not all of the terms and conditions of these rights are represented. However, a quick glance may be helpful in determining whether a certain right is available.

1. THE ARTIST SHALL BE ENTITLED TO A ROYALTY UPON THE RESALE OF HIS OR HER WORK OF ART (Civil Code Section 986) provided that:

(a) The work is a painting, drawing, sculpture or original work of art in glass.

(b) The work does no consist of stained glass pemmanently attached to real property.

(d) The work is sold by the seller for profit, i.e., for more that she or he paid.

(e) The work is resold for $1,000 or more.

(f) The artist at the time of the sale (or at time of death) is a United

States citizen or has been a California resident for at least two years.

(9) The artist has not been dead for more than 20 years.

(h) The sale is not made by an art dealer within 10 years after the initial sale by the artist, with the further proviso that the first sale and all intervening sales until the time of the resale have been made to art dealers.

2. THE ARTIST HAS THE RIGHT TO PREVENT THE

DESTRUCTION, ALTERATION, MUTILATION AND DEFACEMENT OF HIS OR HER WORK OF ART (Civil Code Section 987) provided that:

(a) The work is a painting, drawing, sculpture or original work of art in glass.

(b) The work is of recognized quality.

(d) If the work cannot be removed from a building without substantial physical defacement, mutilation, altercation of destruction of the work the artist reserves such right in a written instrument signed by the owner of the building, which instrument is recorded with the local county recorder.

(e) The misconduct by the person who damages or destroys the work is intentional, except in the case of framers, restorers or conservators who may be liable if they are grossly negligent with respect to the work.

3. THE ARTIST HAS THE RIGHT TO CLAIM OR DISCLAIM CREDIT FOR HIS OR HER WORK (Civil Code Section 987) provided that in the case of the dislcaimer, there is a just and valid reason.

4. THE ARTIST HAS THE RIGHT TO KNOW WHO HAS PURCHASED HIS OR HER WORK (Penal Code Section 536a) provided that: (a) The work is placed on consignment or entnusted to another person for sale.

(b) The artist gives the consignee a specific written notice requesting the name and address of the purchaser of the work, with preference to written notices given before the work is sold.

5. THE ARTIST HAS THE RIGHT TO BE COMPENSATED FOR LOSS OF OR DAMAGE TO HIS OR HER WORK OF ART WHEN PLACED ON CONSIGNMENT (Civil Code Section 1738.6)

6. The artist has the right to first receive proceeds from the sale of his or herwork placed on consignment (Civil Code Section 1738.6)

7. THE ARTIST HAS THE RIGHT TO HAVE HIS OR HER WORKS FREE FROM THE CLAIMS OF THE DEALER'S CREDITORS (Civil Code Section 1736.6)

8. THE ARTIST HAS THE EXCLUSIVE RIGHTS TO REPRODUCE, ADAPT, PUBLICLY DISTRIBUTE COPIES OF, PUBLICLY PERFORM AND PUBLICLY DISPLAY HIS OR HER WORK (Title 17, United States Code Section 106) provided that:

(a) The work was not created, as a work made for hire owned by the employer (17 U. S. C. Sections 101, 201 (a)).

(b) The work is an original work, not the result of copying or plagiarism (17 U. S. C. Section 102 (a)).

(d) If the work is published, all copies of it bear a proper copyright notice (17 U. S. C. Section 401).

9.THE ARTIST HAS THE RIGHT TO BE FREE FROM CENSORSHIP provided that:

(a) In the case of censorship of alleged pornographic materials, the work, taken as a whole, has serious literary, artistic, political or scientific value (Miller v. California, 413 u. s. 15 (1973)).

(b) In the case of political censorship, the work does not present a clear and present danger to public safety or governmental operations or senously impede important governmental interests (Spence v State of Washington, 418 U.S. 405 (1974)).

10. THE ARTIST HAS THE RIGHT TO RETAIN OWNERSHIP OF THE PHYSICAL ART OBJECT EVEN THOUGH S/HE MAY HAVE GRANTED REPRODUCTION RIGHTS THEREIN, AND, CONVERSELY, THE ARTIST HAS THE RIGHT TO RETAIN THE COPYRIGHT IN THE WORK NOTWITHSTANDING THAT S/HE HAS CONVEYED THE PHYSICAL ART OBJECT provided that the artist doesn't also convey in writing the physical art object or the copyright, whichever the case may be (Civil Code Section 988,17 U. S. C. Sections 202, 204)