Copyright law prohibits the unauthorized copying, redistribution, performance or display of a copyrighted work. In the context of art work, these prohibitions can become blurred because the buyer of the artwork can usurp some of the rights belonging to the copyright holder, including the right to resell the work. Although copyright in an artwork is technically established as soon as the artwork is fixed in a tangible medium -- such as paper or a computer file -- copyright registration is necessary in order to pursue a lawsuit for copyright infringement.
Visual Artists Rights Act
The Visual Artists Rights Act, or VARA, extends some of the rights of artists even if they have sold their artwork or transferred their copyright rights associated with their artwork. VARA provides several rights not typically granted through copyright law including: the right to claim authorship, the right to prevent the use of an artist's name on work that he did not create, the right to prevent mutilation or destruction of a work and the right to have a name removed from a work that has been modified in a prejudicial way.
First Sale Doctrine
The first sale doctrine establishes that once a copyrighted work has been legally purchased, the purchaser may transfer, sell, lend or give away the work. The first sale doctrine does not apply to works that are rented or leased, and it does not otherwise allow for copyright infringement. Although the first sale doctrine permits the resale of artwork, other resale regulations may be applicable.
European law and California state law have provisions allowing artists to recapture a percentage of the resale price when their artwork is resold. These laws run contrary to federal copyright law and the first sale doctrine, which allow for the absolute transfer of copyright ownership. The California Resale Royalty Act allows for a 5 percent royalty to be paid to the original artist of a work for all sales over $1,000.
Works Made for Hire
Some artwork is commissioned and created for a specific purpose. Depending on the terms of the arrangement between the artist and the purchaser, the art work may be considered a work for hire. If a work is made for hire the purchaser may be considered the original author rather than the artist. Despite accreditation allowed under moral rights or VARA, the legal rights of a work for hire will reside with the purchaser.