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So this is a follow on question to this.

Lets say I buy an original art work (e.g., a painting, not a print) I would expect that the right to make reproductions would now transfer to myself; and would be rather upset if afterwards, the author started selling copies. I am after all paying a premium for the original.

(This is assuming a non work for hire situation)

Some of the answer on this state however that this is not always the case.

This US copyright office circular states:

The transfer[of copyright], however, generally must be made in writing...

So what I would like to know is: this is then case in other Berne Convention signitories, other than the US (since I don't live in the US).

Also if "generally" the transfer of copyright needs to be in writing, then what is then non general case.

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  • Reading this I sound all selfish and self-entitled. However the reason I ask is because I bought a painting and made a copy to put up in my living room where it will eventually get bleached in the sun.That way I can admire the work and keep it safe at the same time. Now I feel like I need to bin the copy :(
    – DarcyThomas
    Dec 9, 2019 at 8:54
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    "I would expect that the right to make reproductions would now transfer to myself" - Your expectation is wrong. Having said that, you may have the legal right to make a copy for your own personal use; and even if you don't, the artist is extremely unlikely to sue you for the loss they have suffered.
    – Martin Bonner supports Monica
    Dec 9, 2019 at 10:10
  • You quote the US copyright circular despite not being in the US. Was the painting created in the US?
    – phoog
    Dec 9, 2019 at 15:41
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    Note that the "right to make reproductions" is part of owning the copyright, but is not exactly the same thing. Many artists are reluctant to give up copyright. I've found that most are willing to sign a paper giving you permission to make copies for personal use, aka a license, if you ask nicely.
    – bta
    Dec 9, 2019 at 22:23

5 Answers 5

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The work and the copyright to the work are different property rights

Buying one does not give you rights to the other. Copyright laws differ by country so its impossible to say which need transfers to be in writing and which don't. For example, the United States requires them (and also allows owners to rescind the transfer after a number of years) but in Australia, it isn't necessary and the Copyright Act makes a number of presumptions in civil actions (ss126-131) which favor the person claiming the copyright so that, in the absence of contrary evidence, their assertion will prevail.

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    @DarcyThomas Of course not. But if your contract of sale didn't explicitly mention copyright, you didn't purchase the copyright.
    – Martin Bonner supports Monica
    Dec 9, 2019 at 10:11
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    @supercat the copyright belongs to the heirs even if they don’t know it
    – Dale M ♦
    Dec 10, 2019 at 0:03
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    @supercat the will can be explicit about the copyrights; or the will can end with "...and everything else goes to X" which would include copyrights, or it may be unclear which of heirs inherited these particular rights (which is separate from e.g. inheriting that painting), resolving it can require legal effort - review of the will, potential disputes, etc, and maybe they'll resolve it only when (and if) it becomes sufficiently important for them to resolve that issue - e.g. if the rights can be sold to someone, or if somebody has been violating them and could be sued for a sizeable penalty.
    – Peteris
    Dec 10, 2019 at 2:57
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    @supercat Copyright can only be transferred in writing. If DarcyThomas turns up with a written contract transferring the copyright to him, he owns it. Otherwise the heirs do. (Yes, yes, it could be forged, but that is no different to any other case of disputed ownership.)
    – Martin Bonner supports Monica
    Dec 10, 2019 at 6:51
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    @supercat the will can affect the copyright without explicitly mentioning it, but by mentioning some groups of assets which would include it, and heirs would naturally inherit also in the absence of will (in which case it might be that e.g. the copyright is owned by three children jointly). "had not sold the rights to anyone" is the default assumption - the appropriate heirs could assert ownership of the copyright when enforcing it, and if it's not contested, then it would apply, and if it's contested, then the court would rule on whether it will consider them as the owners of that copyright.
    – Peteris
    Dec 10, 2019 at 6:52
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Making a copy for the purpose of protecting the original is likely to fall under fair use (US) fair dealing (UK and perhaps some other jurisdictions) or a similar exception to copyright law (in still other jurisdictions). To know for sure, you would need legal advice.

Alternatively, you can always make a copy with the permission of the copyright holder, or you can purchase such a copy from the copyright holder or from someone else licensed to sell such a copy.

Since asking for permission is probably less expensive than seeking formal legal advice, you might start with that. If the copyright holder refuses, or requests a sufficiently substantial number license fee, you can hire a lawyer to determine whether you can make a copy without permission.

This all makes much more sense if the painting is very valuable and you are very well off. If the value of the painting is less, it might make more sense to proceed without legal advice because the artist is less likely to sue and your potential losses are less.

Regardless, unless you actually secure for yourself the right to make and sell copies, which is as noted in other answers separate from your purchase of the painting, you cannot do anything if someone else starts selling copies other than to "be upset." It may be some consolation in this case that original artwork is generally more valuable than copies.

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    The concept of making a copy to protect the original has been tested in court (US) with respect to software, and it was found to be fair use. I'm not aware of this being tested for other types of copyrightable works (it's not something commonly done outside software), but I would suspect that the same legal arguments would apply.
    – bta
    Dec 9, 2019 at 22:14
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    @bta I believe it's also established for sound and video recordings, where it is also commonly done (also for purposes other than preservation), or at least used to be, but I am not sure. I certainly wouldn't be able to cite any cases.
    – phoog
    Dec 9, 2019 at 23:02
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    The trouble with asking for permission is that it gives the artist the opportunity to say "no", or "that'll be $500 please", and if you go ahead and make the copy anyone you are potentially in difficulty. If you don't ask for permission and they find out, they will probably go "never mind".
    – Martin Bonner supports Monica
    Dec 10, 2019 at 9:17
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As has been explained, ownership of the painting does not give you ownership of the copyright under New Zealand law. To get ownership of the copyright, you have to deal with the owner of the copyright. That can be the painter, his heirs, or someone who got the right from him. Depending on the circumstances, you probably don't need a written contract transferring ownership. But you do need to deal with whoever owns the copyright.

New Zealand Copyright Law is Not Your Friend:

As for making a copy, New Zealand law does allow people to make copies of copyrighted works for what is known as "fair use/fair dealing." Part 3 of the New Zealand Copyright Act, "Acts Permitted in Relation to Copyrighted Works," lists four "fair dealing" exceptions to the general prohibition of copying copyrighted works:

41 Incidental Copying of Copyright Work;

42 Review and News Reporting;

43 Research or Private Study; and,

44 Ephemeral.

None of these exceptions allow you to make a copy for private display.

The University of Otago has a nice web page explaining in greater detail what is required to qualify as "fair use" in New Zealand.

As practical matter, it seems unlikely that you will get in legal trouble if you copy the painting to display it without fading. How will anyone with an interest in enforcing the copyright even find out? And if they do, will the hassle be worth the (I assume) small damages they will win?

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There’s always a contract, but not always in written form.

To get the copyright on the picture you bought, you take some cash, go to the copyright owner, and offer him the cash in exchange for writing on a sheet of paper “I, John Artist, hereby transfer the copyright to my picture ‘polar bears in a snow storm’ to James Artlover.” (Dated and signed).

If the artist refused, there’s nothing you can legally do other than offering more money. Might be strategically better to offer money for the picture and the copyright at the same time. In many countries there’s a separate right of authorship, that is the right to say “I painted this picture”. That right cannot be transferred.

But you don’t need the copyright for your purposes. You can pay for a non-exclusive license that allows you to make copies of the picture in picture form that you may put on the wall if any properties you own or rent. That would likely be cheaper and also more likely that the artist accepts.

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    "There’s always a contract, but not always in written form": I don't think this is true in every system of contract law.
    – phoog
    Dec 9, 2019 at 15:26
  • At least in some countries, a contract is insufficient to transfer copyright. In the United States, for example, the contract must be written, not verbal, to transfer copyright.
    – Mark
    Dec 10, 2019 at 23:50
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You would be wrong. Buying a physical object gives you no rights to do anything with it but look at it. Some court cases even said you cannot throw it away or destroy it! Dont know if those would hold up at higher levels if appealed.

If you want rights to make copies of a painting you would then need to negotiate with the IP owner and write a contract that gave you those rights.

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