USA – CALIFORNIA Law and Practice Contributed by: Jennifer Jordan McCall, Matt Perotti, Drew Reitz and Ashley E. Huh, Pillsbury Winthrop Shaw Pittman LLP
Pillsbury Winthrop Shaw Pittman LLP 2400 Hanover Street
Palo Alto CA 94304 USA
Tel: +1 650 233 4500 Fax: +1 650 233 4545 Email: jmccall@pillsburylaw.com Web: www.pillsburylaw.com
1. Art Law Framework 1.1 Relevant Authorities and Legislation In the United States, art law is an interdisciplinary field that incorporates multiple legal disciplines, such as intellectual property, contracts, property, commercial and constitutional law. The legal framework is shaped by federal and state statutes and regulations, as well as case law. Copyright rights under Title 17 of the United States Code are the primary legal framework that protects an artist’s rights in their original works (as described in more detail below). The Uniform Commercial Code (the “UCC”) provides default rules for common busi - ness transactions and risk allocation. Article 2 governs the sale of goods, such as art, and addresses contract formation requirements, implied and express warran - ties, risk of loss and remedies for breach. Article 9 governs secured transactions and determines how interests in art would be perfected and which party has priority when there are competing claims. Article 12 governs certain digital assets (such as NFTs) and sets out rules for how rights can be transferred and protected.
expression” (17 U.S.C. Section 102 (a)). Those rights arise automatically upon fixation and include exclusive
rights to: • display; • create derivative works; • reproduce; • sell; and
• transfer the work. The artist must register the copyright before bringing an infringement lawsuit and registration can allow the artist to have access to certain remedies that would not otherwise be available. The artist also has property rights. An artist’s rights in a work of art can be understood as two separate forms of property rights. First, the artist may have property rights in the physical work of art, including the rights to possess it, exclude others from it, transfer it by sale or gift and seek state-law remedies if it is taken or withheld. Second, the artist may hold the copyright ownership. Under the Copyright Act, ownership of the copyright is a property right. Even if the artist sells the physical work, the artist may retain the copyright and would retain the exclusive rights to reproduce the work, authorise derivative works, distribute cop - ies and publicly display the image, unless those rights are expressly transferred. In other words, the physi - cal artwork and the underlying copyright are distinct “property” interests and an artist can retain ongoing control over many uses of the artwork’s image even when someone else owns the physical piece.
2. Rights to Artworks 2.1 Artists’ Rights Over Their Art
Copyright rights under Title 17 of the United States Code give the artist legal rights to “original works of authorship” that are “fixed in any tangible medium of
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