USA Law and Practice Contributed by: Jana Slavina Farmer, Adam Buchwalter and Dara Elpren, Wilson Elser Moskowitz Edelman & Dicker LLP
3. Protection Against Plagiarism 3.1 Legal Consequences of Copyright Infringement Violating copyright on a piece of artwork can result in significant legal consequences, including civil and, in some cases, criminal penalties. The copyright owner may file a lawsuit seeking actual damages (the finan - cial loss suffered due to the infringement plus any profits of the infringer) or statutory damages, which are predetermined amounts set by law. However, to be eligible for statutory damages and attorney’s fees, the artwork must be registered with the US Copy - right Office either before the infringement occurs or within three months of its first publication. Without timely registration, the copyright owner is typically limited to recovering only actual damages. For each work infringed, statutory damages can range from USD750 to USD30,000, or up to USD150,000 per work if the infringement is wilful. Statutory damages may be reduced for innocent infringers (eg, the infring - er believed they had a valid licence) down to USD200 per work or forfeiture. 3.2 Registering Artwork To register an artwork with the US Copyright Office, the applicant must complete an online application providing details about the work (such as title, crea - tion date, and publication date), pay a filing fee, and submit a deposit copy. Upon review, the Copyright Office will issue a certificate of registration if the sub - mission meets all requirements. In December 2025, the Visual Artists Copyright Reform Act of 2025 (VACRA) was introduced in the US Senate, proposing to streamline the copyright registration pro - cess by permitting group registrations of up to 3,000 photographs per application, offering registration sub - scriptions, and creating a deferred registration option to reduce costs for high-volume visual artists. At the time of writing, the bill is pending before the Senate Judiciary Committee. 3.3 Resale Right A resale right is a legal concept that gives artists a percentage of the sale price each time their original artwork is resold by others. This right is designed to
ensure that artists benefit from the increasing value of their work as it changes hands in the art market. In the United States, there is no federal law that grants artists a resale right. The California Resale Royalty Act provided this right to artists for sales occurring in California or involving California residents, but it was struck down by the courts in 2018 as being pre- empted by federal copyright law. The Act may still apply in California to a limited number of transactions. As a result, artists in the United States generally do not receive any payment when their works are resold, unless they negotiate such terms privately in their contracts. 3.4 Using Copyrighted Images Anyone who hopes to reproduce a copyrighted art - work should first find out who controls the rights. After locating the rights holder, the prospective user must determine how they plan to use the image: details about the purpose, format, audience, length of use, and geographic reach help the rights holder determine terms and fees. Permission is usually requested through a formal let - ter or email that specifies the artwork, intended use, duration, and distribution. If the rights holder con - sents, the parties should sign a written licence. Copies of all correspondence and the final licence should be kept in a safe place in case the right to use the image is questioned in the future. 4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork After an artist’s death, authentication may be han - dled by the artist’s estate, a dedicated foundation or committee, or recognised experts, with the art market and legal frameworks shaping who is accepted as an authority. The artist’s estate, heirs, or a designated entity may: • hold the artist’s reproduction rights and conse - quently unique entitlement to publish that artist’s catalogue raisonné;
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