Copyright and Title: How well do they work?

It is estimated that about fifty percent of artwork is forged and the highly opaque standards of the art market make it easier to get away with. There are several ways to protect both intellectual and physical property. However, differing standards in implementing these methods allow forgery, fraud, and misappropriation to spread like wildfire.

Copyright is the most widely known way for artists to protect their artwork from forgery or wrongful use of their intellectual property. Since an amendment to copyright law in 1989, creating a wholly original artwork will automatically copyright the work as soon as authorship is assigned. However, it is very hard to enforce as the artist will need to prove ownership as well as be able articulate the time and date that the artwork was created. Without a physical certificate or entity, it is often just the artist’s word against that of the infringer. With the added expense of legal fees and a very slim argument, a legal battle using automatic copyright is often more trouble than it is worth. Filing for copyright offers better protection by having a physical record of the copyright noted in a registry. It is rather expensive with prices ranging from $35 dollars for a single work made by an individual artist not for hire to $55 for work made by a group. Since the Copyright Act of 1976, filing for copyright will guarantee copyright of a work throughout the entirety of the artist’s lifetime and seventy years after death. Copyright can also be sold to other parties or renewed. The Visual Artist Rights Act (VARA) is another avenue that artists can use to protect their artwork which applies to wrongful destruction of an artwork, misappropriation of an artwork, or purposefully distorting an artwork in press or on display. The main problem with this methodology is that even though copyright and VARA have the ability to be free, it is very hard for artists to make an infringement claim without paying for their art being registered in the copyright database.

Copyright protects the artist or copyright owners from infringements, forgeries, or unlawful duplications. On the other hand title protects the owner or seller of the physical artwork. Having valid title of an artwork generally means that the entity holding the title is the sole owner of the artwork. Much like title on a home or a car, it is within the title owner’s rights to display, loan, or sell the artwork. It is important for a purchaser of artwork to make sure that the seller has a valid title. A missing title or a not valid title could be a warning sign of forgery or theft. However, having a title at all with artwork sales is not always a given. It will be more common with high profile sales at auction houses or reputable dealers. In today’s market where art is more often being classified as a financial asset as opposed to a luxury item, collectors are demanding higher standards for artwork authentication and proof of ownership. Determining who has legal title of an artwork is often difficult because art transactions, unlike other financial transactions, are not registered in a central, accessible database.

The main ways to ascertain an artworks title and authenticity are either assessing the artworks provenance or physically reviewing the artwork. Provenance ideally constitutes the history of an artwork from its creation all the way to its present state, accounting for every owner, and change of hand along the way. If the provenance is fuzzy or unclear, it could be an indication that an artwork was forged or acquired illegally and may prompt further investigative strategies. However, provenance can be fallible. Oral accounts have to be taken with a grain of salt and be backed up with extra research, supporting documents, newsprints, catalogs, auction tickets, or any other scraps of information that can be found. Often these items are very hard to find, may have been destroyed, or simply don’t exist anymore. While the ideal is a complete provenance, more often than not it will be riddled with gaps. Artwork can also be physically reviewed using chemical analysis or infrared scanners to search for anomalies indicative of forgery. Anomalies may include period inappropriate pigments, suspicious DNA samples, or indicators of tracing existing artwork such as grid lines. Both provenance and artwork authenticity spur heated debates among experts as they can be subject to mistakes and lack one hundred percent certainty.

There are a variety of ways for artists and collectors to protect both their intellectual and physical property such as copyright and proof of title. Determining provenance and physically authenticating artwork can help enforce these methods. The problem with these approaches is that they are difficult, fallible, and are not enforced throughout the entirety of the art market. The market is very opaque with highly differing standards. The opacity makes it difficult, often impossible to establish title and prove that an artwork is authentic prior to purchase. The art market as a whole needs to be more transparent in order for protective policies to be enforced and implemented correctly.

Article by: Christopher Rahmeh