USA – FLORIDA Law and Practice Contributed by: Diego R. Figueroa Rodríguez, DLA Piper
4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork Living artists or their representatives can authenticate their artworks. When the artist passes away, the right to authenticate may fall to the artist’s heirs, designat - ed experts, or foundations. These entities can issue certificates of authenticity, but there is no legal obliga - tion or exclusivity in conducting such authentication. Artworks’ authentication is not limited to the artist’s estate or foundation; specialised independent experts and scholars can also perform it. Experts analyse art - works using style analysis (brushwork, composition and signature), scientific/forensic methods (x-rays and pigment analysis) and provenance research (docu - mented history of ownership). Recently, artificial intel - ligence (AI)-based systems using pattern recognition have proven helpful in determining artwork authentic - ity. 4.2 Art Authentication Generally, there is no legal obligation on a living art - ist, their estate or their foundation (if the artist is deceased) to authenticate their artworks or include them in the artist’s catalogue raisonné. Note that, unlike in other European countries, an artist’s moral rights (attribution and integrity) only last for the artist’s life in the US. However, they do have the moral right to disavow artworks that are not theirs or that have been altered. Courts usually refuse to compel artists, artist foundations, or experts to authenticate works or include them in their catalogue raisonné because authenticity is considered a matter of expert opinion and scholarly discretion, not law. However, a court may force authentication if a contract specifically requires it, such as a sales agreement between the artist and a collector. Many artist foundations and authentication boards in the US have stopped authenticating artworks due to fear of legal action and the prohibitive costs if they accidentally authenticate a forgery or disavow a genu - ine work.
Work for Hire The hiring party is listed as the author and claimant. For these works, the copyright lasts for 95 years from publication or 120 years from creation, whichever is shorter. Copyright in Florida is governed by federal law. For more in-depth information on how the Copyright Act covers this subject, please refer to the USA Law & Practice chapter of this Guide. 3.3 Resale Right An artist’s resale royalty ( droit de suite ) offers the artist a chance to profit from the appreciation of their works over time by granting them a percentage of the pro - ceeds from the resale of their original artworks. There are no artist resale royalties under federal or Florida law. However, California has one. At the federal level, there have been unsuccessful attempts to enact the American Royalties Too Act, which aims to mandate a 5% royalty, capped at USD35,000 for works sold at auction for over USD5,000. For more information, see the California and the USA Practice Guide. 3.4 Using Copyrighted Images The initial step in obtaining permission to use copy - righted artworks is to identify and contact the copy - right holder. This could be the artist, their estate, a gallery, or a publisher. Useful searching databases include the US Copyright Office Public Records Sys - tem and the WATCH (Writers, Artists and Their Copy - right Holders) File. However, even if not registered, the artworks are still protected. Before making a request, determine the specific rights needed, including the intended use, duration and location. Seek permission formally (through a letter or email) and ensure that any granted permission is in writing. Common agreements include a flat-fee license or royalties.
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