Q: So far I’ve been strictly a commercial illustrator, but now I’m thinking about participating in open studios to sell my original paintings. I’m also planning to create limited editions of fine art prints of my artwork, probably as giclée prints. Some of them are illustrations that have already been published by my corporate clients, in things like their annual reports and advertising. Is there any problem with my plan to resell those works now in the fine arts market? What else should I know about the fine arts world? Are there different legal issues for fine art than for graphic art?

A: There are several things to consider when you make the transition from commercial illustration to marketing your work as fine art. First, you should make sure that you will not be in breach of your prior contracts with the clients to whom you first sold the artwork. You should know about additional legal rights and obligations that apply to sales of fine art. Finally, you will need different kinds of agreements to reflect the different kinds of relationships you will create, for example, with agents, galleries, dealers, and your direct sales customers. In this month’s column, I will address your rights and obligations, and sales of your fine art to open studios customers. I’ll talk about working with agents, galleries and dealers in a future column.

1. Do you have the right to resell your illustrations
as fine art?

Whether you can resell illustrations as fine art now depends upon what scope of rights you gave to your original client. If you assigned all copyright to the client, you cannot make new copies of the artwork, including fine arts prints, without the client’s permission. You can still sell the original painting, because the right to own the tangible painting is separate from the copyright. That’s great if your original work is a tangible piece of artwork like a painting. However, if your original work is a digital file, you probably don’t have the right to make a new print to sell. That would count as making a copy, and it is covered by the copyright that your client owns

If, instead of assigning copyright, your contract granted your client a license to use your illustration, you need to determine the scope of those usage rights. The scope of a license can be limited in several different ways: (1) to certain types of media (print, online, broadcast, clothing, etc.), (3) to certain types of usage (e.g., in annual reports but not billboard advertising); (2) for a certain time frame, and/or (3) for a certain geographic territory. The license can be very broad or very narrow, depending upon how these limitations are described. For example, if the license granted exclusive rights to reproduce the illustration in all media, that would include fine arts prints, and you will need your client’s permission to make your own fine arts prints even if that’s not what the client is doing with your work. However, if the contract recites a more narrow limitation on usage, e.g., for print advertising and promotions, you may still be able to make your own fine arts prints. Or if the license was for a limited time frame, e.g., two years, you can make and sell your own prints after the two-year term has expired.

2. Legal rights for fine arts

As a commercial artist, your rights in your artwork were mostly governed by federal copyright laws and private contracts. When you move into the world of fine arts, federal and California laws provide some extra protection. The following laws give you future rights in your works of fine art even after you sell the actual artwork to someone else.

Copyright. Copyright gives you as the artist the right to control whether and how copies are made of your artwork. For a full discussion of copyright, see Legalities # 1.

Copyright ownership is separate from ownership of individual items of art, and it does not transfer with a sale of fine art.  If your purchaser wants to reproduce the painting she now owns, she will need your permission, except for some limited “fair use” purposes. For example, she can use a picture of the artwork in order to offer it for sale, or if she lends or sells your work to a gallery, museum, or auction house, those entities can include a picture in their catalog or other publications related to selling or showing the work.

However, if your purchaser makes Christmas cards from your painting, or uses it on the webpage or on the cover of a brochure for her business, she will be liable for copyright infringement unless she got your permission. Copyright can be assigned, but only in a writing signed by you which specifically says that you are transferring “all copyright.” Copyright lasts for your life plus 70 years.

Moral rights. Federal and California laws give visual artists some of the rights that are similar to the “droit moral” or “moral rights” recognized for all artists in Europe. The federal law is called the Visual Artists Rights Act, which is codified as part of the U.S. Copyright Act, 17 USC Sec. 106A. In California, it’s the California Artists Rights Act, Cal. Civil Code Sec. 987.

Under both the federal and California laws, moral rights are limited to a specific category of visual works. These are defined as: an original painting, drawing, print, sculpture or photograph (and in California, a work in glass), if it exists only as a single copy, or under the federal statute, as a limited edition of 200 or less that are signed and consecutively numbered by the artist. Creators of such works have rights of “attribution” — the right to be named as the creator of the work, or to have your name removed from altered or damaged works, and “integrity” — the rights to prevent your work from being intentionally modified, distorted or damaged, and to prevent destruction of the work. There are some exceptions, including for murals and other works that cannot be removed from structures without damage. Modifications caused by framing or restoration are exempt unless done with gross negligence.

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. 

So, for your original paintings, you and your estate will have rights of attribution and integrity for your life plus 50 years (under the California law). For your fine arts prints, if you limit your edition to 200 or less, you will have rights of attribution and integrity for your lifetime (under the federal law).

California resale royalties. 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 — so it would apply for your paintings, but not to giclée prints. 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 seven 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.

3. Legal obligations when you sell “fine art”

Business licenses and permits. It seems that most artists sell at open studios “under the radar”, without officially registering as a business or collecting sales taxes. However, the better practice is to get appropriate licenses if they are legally required. Whether you need a business license, fictitious business name registration, sales tax permits, etc. will depend upon the ordinances in your particular city or county. Occasional private sales of artwork may or may not qualify as an active business for which such filings are necessary. For example, in San Francisco nearly everyone engaged in selling anything should have a business license, which for sole proprietors can cost as little as $25 per year. A good resource for finding the specific requirements in various localities in California is the CalGold website, www.calgold.ca.gov. If you already have appropriate business licenses/permits for your illustration business, you can probably conduct your open studios sales as part of that same business.