Conflicts of Copyright Ownership Between Authors and Owners of Original Artworks: An Essay in Comparative and International Private Law

Most, if not all, copyright laws distinguish between ownership of the incorporeal copyright, and ownership of chattels. A generally-accepted corollary holds that alienation of the chattel that constitutes the material form of a copyrighted work does not carry the copyright with it. Applying this principle to works of the visual arts, it should be clear that sale of a painting, even if it is the only copy of a work, is not a transfer of the exclusive rights under copyright to reproduce the work or to create derivative works based on the painting. Similarly, ownership of the copyright confers no rights as to the material object. The artist (or her successor) owns the incorporeal exploitation rights; the purchaser of the painting is entitled to the quiet enjoyment of his chattel. However, the distinction is not as impermeable as this exposition would suggest. On the one hand, the artist\u27s rights, particularly her moral rights as enforced in some countries, limit the prerogatives of the owner of the art object. On the other hand, the owner may impinge upon, or indeed fully displace, the author\u27s pecuniary rights, in those copyright systems that presume a transfer of copyright ownership together with the alienation of the original object, or that attribute initial copyright ownership to the party that commissions the creation of the artwork. The potential conflicts between artists and artwork owners have recently assumed an unprecedented importance. Until recently, the market for artworks was a market for originals. The value of the copyright rights of reproduction and adaptation was sufficiently negligible that artists directed most of their copyright-reforming efforts toward securing the droit de suite, or artist\u27s resale royalty on subsequent transfers of the chattel Now, by contrast, the market for art merchandizing properties – reproduction or adaptation of art images on an ever-expanding variety of products, from paper goods, to clothing, to household items, to computer screen fillers, etc. – affords a significant and growing source of income to copyright owners. Thus, determining who is in fact the copyright owner, as between the artist and the purchaser of the art object acquires a practical urgency. But differences in national copyright laws, and in approaches to international conflicts of law, may make this determination complex if not elusive. In this Article, I will first discuss the various points of contact, or conflict, between the rights of artists and of artwork owners in comparative law (primarily the U.S. and France). I will then consider how international private law rules applied in the U.S. and in Europe would (or perhaps should) designate the national law competent to resolve the conflict in copyright ownership between artists and purchasers