USA – FLORIDA Law and Practice Contributed by: Diego R. Figueroa Rodríguez, DLA Piper
• when an artist delivers a work to an art dealer for exhibition or sale, the artist’s share of sale proceeds takes priority over any claims, liens, or security interests held by the dealer’s creditors, regardless of provisions in the UCC. The following consignment provisions are non-waiv - able: • the consignor must provide public notice by affix - ing a sign to the work, indicating it is sold under consignment; • the consignee must display a clear and conspicu - ous notice in their place of business informing the public that certain artworks are being sold on consignment; and • the consignee is required to hold the sale proceeds in trust for the benefit of the consignor, with pay - ments due to the consignor to be satisfied first. Secondhand Dealers The Secondhand Dealers Act, Chapter 538, Part 1 of the Florida Statutes, governs entities engaged in the purchase, consignment, or trade of secondhand goods, with an emphasis on curbing the distribution of stolen property. The statute outlines comprehensive obligations for secondhand dealers, including manda - tory registration with the Florida Department of Reve - nue, detailed recordkeeping requirements, prescribed holding periods and procedures for verifying seller identification. Specifically, dealers must retain art and antiques for a minimum of 30 days prior to resale and maintain transaction records (including seller identifi - cation and item descriptions with digital photographs) on-site for three years. Noncompliance may result in penalties, including civil fines of up to USD10,000 per violation. Notably, these regulations largely exempt nonprofit and charitable organisations, as well as par - ticipants in antique and collectable shows.
they have created and embodied the artwork (eg, a painting). Once the artist sells the artwork, the physi - cal object ceases to belong to the artist and now becomes the buyer’s property. However, the underly - ing copyright and moral rights remain with the art - ist. For instance, the buyer can use and display the artwork, but cannot reproduce it without the artist’s explicit written consent. Such transfers are uncom - mon. The Copyright Copyright automatically protects the original artwork from the moment it is fixed in a tangible medium of expression, such as a canvas. At that point, it becomes the property of the artist who created it. This grants the artist a certain “bundle of rights,” includ - ing the distinct, exclusive and divisible legal rights to reproduce, distribute, perform, display and create derivative works from their artworks. These economic rights are transferable, allowing the artist to control the financial exploitation of their creations. Typically, these rights last for the artist’s life plus 70 years. The primary federal law governing copyright in the US is the Copyright Act of 1976. Moral Rights Moral rights are personal, non-economic rights that safeguard an artist’s reputation and the integrity of their work. These rights empower artists to assert the authorship of their creations and prevent intentional distortion, mutilation or modification of their works (integrity). Additionally, artists have the right to pre - vent the destruction of works of “recognised stature.” Unlike copyrights, moral rights are non-transferable but can be waived in writing. They also expire upon the artist’s death. The Visual Artists Rights Act of 1990 (VARA) serves as the primary federal law governing Depending on the circumstances, an artwork might be deemed a work for hire. In such cases, the employer or commissioning party, rather than the artist, is con - sidered the legal author and initial owner of the work’s copyright. This is particularly relevant for works cre - ated by employees within their job responsibilities or specially commissioned works, which are often sub - ject to a written agreement. moral rights. Work for Hire
2. Rights to Artworks 2.1 Artists’ Rights Over Their Art Ownership of the Property
Ownership of the artwork and ownership of the copy - right are two distinct concepts. In a typical scenario, the artist retains ownership of the physical object
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