USA Law and Practice Contributed by: Jana Slavina Farmer, Adam Buchwalter and Dara Elpren, Wilson Elser Moskowitz Edelman & Dicker LLP
in the event that a dealer becomes insolvent. Article 15 requires disclosures in transactions involving fine art multiples (such as limited edition prints), including edition size. Case law The United States follows a precedent-based legal system, which means that decisions made by courts form binding legal rules that guide future cases with similar facts. Contract law shapes disputes involv - ing the sale, consignment, loan and commission of artworks, with case law, frequently addressing con - tested issues of authenticity, ownership and payment. Tort law precedents guide remedies for fraud, mis - representation and negligence – especially in matters involving forged or misattributed works. New York courts in particular have developed influ - ential case law on issues such as authenticity, prov - enance (ownership history), and the duties of art deal - ers and auction houses, and the state’s courts are often the forum for art-related disputes due to the concentration of art market participants in the state. An artist’s rights over a physical artwork relate to the control and ownership of the tangible object. When the artwork is sold, the artist usually gives up pos - session of the physical piece unless there is an agree - ment stating otherwise. Artists can use contracts to set conditions for how the work is displayed, stored or handled to maintain its context or condition. In the absence of such agreements, the purchaser generally has full rights to use, display, or even dispose of the artwork. Copyright Copyright is the primary legal tool in the United States that protects the creative expression of artists. This gives the artist the exclusive authority to reproduce, distribute, display, and create derivative works from their creation. These rights are not only a means of controlling how the artwork is used and shared but also of providing the artist with the ability to benefit 2. Rights to Artworks 2.1 Artists’ Rights Over Their Art Property Rights
financially from their work, whether through direct sales, licensing, or other arrangements. Moral Rights Artists’ moral rights in the United States are protected under VARA and apply to certain works of visual art. These moral rights enable artists to claim authorship of their work, to prevent their name from being used on works they did not create, and to object to the intentional distortion, mutilation, or destruction of their work. Moral rights may permit an artist to deny authorship or association with a work, particularly due to unauthorised alterations. These protections apply to works of visual art, such as paintings, drawings, prints and sculptures, and photographs produced in limited editions, and are designed to safeguard the artist’s personal and reputational interests, even after the work has been sold. These rights are also per - sonal to the artist and exist independently of copy - right. Recently, in Atkinson v Shepherd (DSC 2024), a federal court awarded artist Todd Atkinson USD8,400 in actual damages for copyright infringement, based on an expert’s appraisal of the artwork’s value, and USD150,000 in VARA damages, the maximum amount allowed by the statute. 2.2 Copyright in Collaborative Artworks Copyright in Joint and Collective Works When multiple artists collaborate to create a single artwork, copyright law treats the resulting work as a “joint work”, meaning each co-author holds an undi - vided interest in the entire copyright, unless other - wise agreed. All co-authors have equal rights to use or license the work, but they must share any profits. In addition to joint works, collective works combine individual contributions into a larger single work (such as an album or a compilation), and copyright may be held by the compiler or editor. If contributions to the collective work are distinct and separately copyrighta - ble, such individual contributions are registrable either separately or as part of the collective work.
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