Art & Law. The rights of the author and collector of works of art. Part 2
ARTinvestment.RU   15 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?

In the first part of the material (see AI: "Art & Law. The rights of the author and collector of works of art. Part I"), we started talking about that need to know the collector on the rights of the author of a work of art. Today we continue to consider other situations of contact with copyright in the practice of the collector.

Public domain

Exclusive right to a work lasts for the life of the author and seventy years, counting from January 1 of the year following the year of death of the author. After the termination of the exclusive rights a work of science, literature, or art, as disclosed and undisclosed, goes into the public domain. Thus protected by the authorship, author's name and inviolability of work.

as a General rule, in accordance with the civil legislation, if there are no heirs as provided by law and under the will, or anybody from successors has no right to inherit or all successors are discharged of inheritance, or anybody from successors has not accepted the inheritance, or all successors have refused the inheritance and thus anybody from them has not specified that refuses in favor of another heir, the property of the deceased is considered escheated, that is, goes to the state. However, this rule does not apply to works of art, namely, the exclusive right to a work is transferred not to the state, and in the public domain. This means that this product can be freely used by any person without whose-либо permission and without paying copyright royalties. When it does not prejudice the moral rights of the author, i.e. not to be assigned the authorship of the work, distorted the name of the author, violated the integrity of the piece.

the Right of access

the Right of access — is the author's right to require the owner of the original works of fine art providing opportunities to exercise the right to reproduce his work (e.g. making copies). Due to the fact that the right of access is inseparably connected with the personality of the author and the creative process of creation and reproduction of a work, it cannot pass to the heirs.

the Right route

In accordance with the civil law right of succession is that the author of a work of fine art is entitled to receive remuneration in the form of a percentage of the resale price original works. In case of alienation (sale, donation) by the author of original works of fine art upon each resale of the respective original in which as intermediary, buyer or seller involved, a legal entity or individual entrepreneur (in particular, auction house, fine art gallery, art salon, shop), the author is entitled to acquisition from the seller compensation in the form of percentage deductions from the resale price. The amount of interest deductions is set by the Government from the resale price of the work.

droit de Suite is inalienable, but passes to the heirs of the author for the duration of the exclusive right towork.

Information necessary to ensure payment of the remuneration of each resale must be provided by the auction house, galleries fine art, art salon, shop of the author or organisation managing rights on a collective basis, representing their interests. It is necessary to assume that sellers should be exempt from the payment of interest on the right route in relation to artists who have no heirs. Currently in Russia there is a professional organization for collective management of exclusive rights of photographers, artists, sculptors, and other artists of artworks — the Association of rights Holders for the protection and management of copyright in the arts (UPERVIS). Learn more about the relationship and collaboration art-рынка and UPRAVIT you can read on the Internet, including materials AI.

note that the existence of a contract on transfer of management authority inherited the exclusive right of the organization to manage rights on a collective basis, including signed by the testator, does not deprive the heirs of the right to independently apply to court for protection of their violated or disputed rights.

Debts and obligations

the Heir is to remember that with the legacy he not only gets the property and benefits, but also debt of the testator, because they are part of the inheritance. This means that the heirs accepting the estate of a deceased, can not give up his debts. In addition to the debt, the heirs by the testator may be assigned certain obligations — for example, expressed in the form of laying a legacy or of a legacy, which is reflected in the will and that the testator can reconcile the new tools: hereditary contract, inheritance Fund (see more on AI: "Art & Law. Succession planning and management of the collection"). For example, if you have inherited a collection of art, you may be obliged to keep a collection intact, hold exhibitions, provide the opportunity to get acquainted with the collection. In this case the person concerned or any other heir in a judicial order have the right to demand proper fulfillment of these obligations. What happened in the high-profile case, which came to light history enmity of the family of Peggy Guggenheim: "Family Romni and Leonov stated in the court of appeal that the Peggy was to exhibit his collection in the form in which she created it, and to the Palazzo (the house-музей Peggy Guggenheim in Venice, transferred to the Solomon R. Guggenheim Foundation together with the collection under the will of Peggy before his death in 1979. — AI.) it was known under the name of Peggy, and not under others. Fund representatives continued to argue that in the will of Peggy there are no conditions regarding the donation of the collection and the Palazzo. In fact, the dispute between the Foundation and the heirs — the definition of the format of the Peggy Guggenheim Museum. The descendants see it as a memorial, and the Fund — as actively developing the Museum's commercial enterprise (one of the symbols of the art of Venice and visited more than 400 thousandpeople annually. — AI)".

Conclusion

As can be seen from the above cases, even if the collector or the author has taken care about the design of inheritance of a collection of art objects in advance, in writing expressing their wishes, it is not always possible to avoid conflict between the heirs, successors and executors, copyright holders in respect of the collection. The author owns all copyrights and the exclusive right since the creation of works of art; collector, becoming the owner of original works of art at alienation by the author acquires the exclusive right if the contract expressly provides for the transfer of this right to the buyer. The alienation of the original works of its owner, possessing the exclusive right in a work, but not the author of the work, the exclusive right in a work transferred to the acquirer of the original work, unless the contract provides otherwise. As the heirs and the executor, who is charged with copyright protection, or other rightholder, along with the author's heirs or executor of the estate entitled to claim protection of the moral rights of the author, as well as the protection of infringed exclusive right.

Only civilized approach and respect for the rights of all stakeholders will allow to resolve contradictions and to guarantee the legitimate use of works of art subject to moral rights of the author.

art Lovers and collectors well known names Mikhail Larionov and Natalia Goncharova, who moved from Russia to France in the early twentieth century. During the life of both artists was in the French Society of authors of graphic and fine art ADAGP, which after the death of the artists has managed the copyright to the work of artists. Goncharova died in Paris in 1962-м, all of your work, she bequeathed the USSR. Larionov did not may 10, 1964, and before his death he instructed to convey all their Goncharova heritage home. Most of their work was transferred to the State Tretyakov gallery. Since January 1, 2021, the Ministry of culture of Russia will carry out on behalf of the Russian Federation the exclusive and other rights to the works of Russian artists, as the Treaty between the Russian Federation and the ADAGH expires 31 Dec 2020.

Yulianna Vertinskaya, Legal&Compliance, especially for the AI
the Article is published for information only and is not legal advice