The Artist, their work and the copyright – by Cliff Ennico (03 Aug 09)
WHEN AN ARTIST FACES THE “DYING OF THE LIGHT”
“My Mom was a prominent artist in her day. She created hundreds of original paintings, most of which she still keeps in the home where we grew up. Some were sold through galleries, and a few were given to friends and relatives, but most of them she still has. Sadly, Mom is in a hospice right now, and is not given much longer to live. She and I were working on a book together, featuring reproductions of her paintings as well as some photographs I’ve taken over the years. I’m hoping to complete the book before she dies, but how should we handle copyright in a situation like this?
I have two siblings, and while I don’t want to cut them out of their fair share of Mom’s estate I want to be sure I receive the lion’s share of the profits for all the hard work I’ve done on this project. What’s the best way to do that?”
First, some copyright basics. When an artist creates any work of art – a painting, a photograph, a sculpture, or anything else – her copyright attaches to the work the moment it’s finished. You do not actually have to register the copyright with the Copyright Office as long as there is some documentation as to when the work was created. Unless your Mom assigned her copyright to her paintings to someone else, she still owns the copyright to all her paintings, and you own the copyright to all of the photographs you took. When your Mom dies, the copyright to her paintings will pass to her estate and then to whomever she designates in her will.
Even though your Mom sold and gave away some of her paintings, she still owns the copyright in those paintings. Ownership of a work of art does not give the owner the copyright. If I buy an original painting from a local artist at a crafts fair, I can hang it anywhere I like (or not at all) and can resell the painting to anyone whenever I want. What I can’t do is (1) make any changes or alterations to the painting, (2) copyright the painting in my own name, or (3) make reproductions of the painting for profit, without the permission of the artist (or his estate if he’s passed on).
What someone is going to have to do in your case is to put together a catalogue or inventory of all your Mom’s paintings – the ones she has as well as the ones she sold – and appraise them for estate taxes. Your estate attorney should be able to recommend a gallery owner or art appraiser in your area who can do this sort of work.
Next, assuming your Mom still has her mental faculties and is aware of what’s happening, have your attorney draw up a short document by which your Mom gives you permission to make reproductions of her paintings and include them in your book, and grants you a “nonexclusive, limited, perpetual license” to do so. Each of those words has legal meaning, and your attorney can explain them to you. Basically it means you can put reproductions of any of your Mom’s paintings in the book and no one (not even your siblings) can do anything about it. To be enforceable in a court of law, it’s probably a good idea for you to pay to your Mom (or her estate) a percentage of any royalties and other income you earn from the book. That will make a legal challenge from your siblings (or anyone else) much less likely.
Finally, it may be time for your Mom to update her will. Now is the time to do that, assuming she’s still mentally lucid. Here are some specific will provisions you may want to consider, depending on how co-operative your siblings are:
· a clause specifying that the copyright to all her paintings is to be held in trust for all three of her children, with you as sole trustee;
· a clause appointing you sole caretaker of all her paintings (as opposed to the executor of her estate, who can be someone else), and making you solely responsible for preparing a catalogue and inventory of her work (at the estate’s expense);
· a clause giving you sole authority to make decisions regarding the sale, lease and license of her paintings for the benefit of you and your siblings (assuming you’re the one who has a “head for business”); and
· “specific bequest” clauses transferring possession of certain individual works of art to you and your siblings (but not the copyright, which will be shared by all of you equally).
Most important, sit down with Mom right now and make a list of every gallery owner, friend and relative she remembers giving her paintings to over the years. That’s information your Mom probably has “in her head” and it will disappear forever once she passes.
Cliff Ennico (firstname.lastname@example.org) is a syndicated columnist, author and former host of the PBS television series ‘Money Hunt’. This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about