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Art & Law. The rights of the author and collector of works of art. Part I
ARTinvestment.RU   13 мая 2020

What are the rights of the author and not transferable, which provide the ability to order and use art for commercial purposes and how much rights can be transferred to the heirs as the author and copyright holder?

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Acquiring a piece of art, it is important to pay attention to the fact that together with the right of ownership to you moved also and exclusive right, which will allow you to use and dispose of their purchase in full, including for profit (more on this, see AI: "the bona fide acquisition and ownership of art objects"). In this article we will look at what is the difference between moral rights of the author and the exclusive right to a work of art.

Copyrights and exclusive rights

In accordance with the civil law distinguished the moral rights of the author and the exclusive right, understood as a property right that allows the author of a work, the copyright holder and their heirs to retrieve the property benefits from the use of such a right.

the author's moral rights include the right of authorship (right to be identified as the author of the work), the author's right to name, right to inviolability of the work and the right to disclose the work. In foreign regulations, we can also meet the concept of moral rights (eng. moral rights), the scope and legal effect of which must be considered in the framework of specific legislation. In accordance with provisions the Berne Convention for the protection of literary and artistic works, which States the author's moral rights, the country — members-участники Convention — at the legislative level must guarantee to authors that, regardless of the author's economic rights and even after assignment by the author of these rights, he has the right to demand recognition of his authorship of the work and to oppose to any perversion, distortion or other modification of that work, as well as any other encroachment on work that could harm the honor or reputation of the author.

Implementation of protection of moral rights of the author, including the name and reputation of the author, can be made both by the author and his heirs. The author may demand recognition of his authorship, and to claim in respect of incorrect attribution. So, in 2008, Ilya Glazunov made a statement that the auction house Sotheby's mistakenly attributed to him the authorship of the work "view of the Kremlin". "The painting "view of the Kremlin" is not mine, she's awful and embarrasses me as an artist. I will demand from Sotheby's to remove this hack from the auction. Yes, on the Arbat draw better than these forgers", — stated Ilya Glazunov. "I believe that the greatest beastliness, even a criminal offense, exposing to the auction picture, not to request confirmation of the authorship of a living artist. Moreover, it is unworthy of such a respected auction as Sotheby's", — expressed indignation at the artist. The auction house acknowledged that the auctioned painting by people's artist of the USSR, rector of the Russian Academy of painting, sculpture and architecture Ilya Glazunov, as stated in the catalog, and another artist. However the lot from the auction was not removed (read the material , fully).

Making a will, the author is entitled to appointexecutor to take on the protection of authorship, author's name and inviolability of works after his death. In the absence of such indications or in case of refusal, appointed the author from execution of corresponding powers, and also after death of this person protection of authorship, author's name and inviolability of the work is carried out author's heirs, their successors and other stakeholders. It can be assumed that in the framework of genetic tools the testator-коллекционер can assign to the heirs of their respective obligations under the protection of the good name of the author. Often among the heirs and executors conflicts arise. So, in the first half of 1970-х years in the United States undergo a lengthy trial in relation to the legacy of American artist Mark Rothko between his daughter, Kate Rothko, his executors and leadership of the gallery Marlborough Fine Art. Under the will of Rothko, a large part of the inheritance — almost 800 paintings (total value at date of death $20 million) and about $300 thousand in cash — had to move it to a charitable Fund established simultaneously with the signing of the will. In the Charter of the Fund Rothko task was the care of the creative heritage of the author, as well as assistance to poor artists and writers. The cause of the conflict between the artist's heirs and the Foundation was the fact that partial execution of the instructions Rothko, namely, concern exclusively on grants to indigent artists, for which the Fund was simply to sell paintings without paying attention to the creative heritage of the artist. The defense of the children of Mark Rothko addressed in the court, accusing the executors of the artist in the conspiracy to usurp the inheritance by fraud and demanding their removal from the duties of executors and cancelling fraudulent contracts for the sale of paintings (to read the material , fully).

the author's moral rights are not part of the inheritance. However, the artistic heritage, the protection of the author's name, right of authorship and integrity of the works are important aspects for collectors and heirs to the maintenance and preservation of collections of works of art. For full use of works of art, at its discretion, any legal manner it is necessary that you have transferred exclusive right. It is understood that the right of ownership and exclusive rights in a work independent from each other. If the exclusive right in a work will not go along with the original works, the purchaser without the consent of the author or other rightholder and without payment of remuneration has the right to demonstrate acquired ownership of the original work and to reproduce it in catalogues of exhibitions and in publications dedicated to the collection, and send the original work to showcase at exhibitions organised by other persons, but without the purpose of profit.

In the Russian civil law provides that the exclusion (for example, the sale, donation) by the author of the original artworks (paintings), including at alienation of the original work under the contract of author's order, the exclusive right to the work remains with the authorunless the contract provides otherwise. the alienation of the original works of its owner, possessing the exclusive right in a work, but not as its author (art-дилер gallery), the exclusive right in a work transferred to the acquirer of the original work, unless the contract between the purchaser and the owner not provided otherwise.

the Exclusive right, which has both the author and the copyright owner (a collector who received this right by contract), inheritance, inheritance by law or by will, to the extent that had the author and copyright holder. The successor is entitled to exercise protection of the violated exclusive right to a work by any of the methods listed in the civil law.

Perhaps our readers have heard about the case of James Cameron and the heirs of Pablo Picasso. We will remind its essence briefly: the American society for the protection of copyright of artists twice appealed the Director James Cameron with a demand to cease use of the image of the painting "Les demoiselles d'avignon" (1907, new-Йоркский the Museum of modern art, MoMA), which had been repeatedly demonstrated in the films "Titanic" (1998) and "Titanic 3D" (2012), and to pay the heirs of Pablo Picasso compensation for the use of pattern for commercial purposes. Directed a ban on the use of the picture was ignored, but the corresponding payment made.

the Russian legislation also contains provisions providing for the right of heirs and executors to require the violators of the cessation of misconduct. When you switch the order of succession of exclusive rights in a work of art heir may to use such work at its sole discretion by any means not contrary to law. In cases specified by law (regardless of the appropriate steps in order to extract profit or without such purpose), other entities can perform actions only with the consent of the heir, except when the law provides for the possibility to use works without obtaining the consent of the author or copyright holder — such as in the case of free use of works for informational, scientific, educational or cultural purposes (article 1274 of GK RF). Every use of a work will require individual review, interpretation of legislation and development of practical solutions for the protection of rights.

to be Continued.



Attention! All materials of the site and database of auction results ARTinvestment.RU, including illustrated reference information about the works sold at auctions, are intended for use exclusively for informational, scientific, educational and cultural purposes in accordance with Art. 1274 of the Civil Code. Use for commercial purposes or in violation of the rules established by the Civil Code of the Russian Federation is not allowed. ARTinvestment.RU is not responsible for the content of materials submitted by third parties. In case of violation of the rights of third parties, the site administration reserves the right to remove them from the site and from the database on the basis of an application from an authorized body.


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ARTIMX
13/07
1502.83
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13/07
1502.83
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