What is required to transfer copyright when purchasing an original work (with out a contract)?

Question

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.

Answer 1

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.

Answer 2

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.

Answer 3

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?

Answer 4

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.

Answer 5

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.