Legal Question in Intellectual Property in California
Copyright law for art
I commissioned an oil painting from a local artist. The subject was my idea. He never would have painted this subject without me commissioning it. The artist and I looked through many photos of this subject and he found the inspiration for the finished piece from among several photos he found (so he did the legwork).
He painted it. It's wonderful. I love it. He's very proud of it, and should be. He went and had it copied so he could make giclee prints of it to sell at his shows. I was uncomfortable with the idea that he could sell prints of the painting I commissioned. He says he owns the copyright and can reproduce it and sell any reproductions. My question is: For a piece I commissioned, does he really own the copyright, and can he sell reproductions against my wishes? The copyright law seems to say that he would this would an ''artist for hire'' in which case I really own the copyright. Can you advise who owns the copyright and if he is legally within his rights to sell prints?
Thanks,
rgl
2 Answers from Attorneys
Re: Copyright law for art
You are exactly correct. A "work for hire" is one where the copyright belongs to the party who paid to have the work created. Your artist cannot sell copies without your permmission or without paying you a fee (should you reach such an agreement - it should be in writing and signed by both parties. It should specifically spell out exactly what you are allowing and contain a disclaimer to the effect that "all other intellectual property rights are retained by the copyright holder." (namely, you). He owes you, presently, for any copies he has already sold without your permission.
Re: Copyright law for art
Actually, Mr. Williamson is only partially correct.
Copyright law provides that a work can be considered a "Work made for hire" only under certain very specific circumstances (see it excerpted below)
From your question it seems clear that this is not an employer/employee situation, so part (1) is out.
I can't determine whether you had a signed contract that specified that the work is a "Work made for hire", but even if you did, a painting doesn't fit into the categories contemplated by the definition in part (2), so I'm afraid the artist is correct in this case.
Unfortunately, the only way to avoid this situation in the future is to prevent the copying from being done in the first place by restricting access to the original. You CAN have such a restriction included in the commission contract, specifying that low-resolution photographs of the work may be made only for portfolio purposes.
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A �work made for hire� is�
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
(Title 17 U.S. Code, Section 101)
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