June 4, 2018

Who owns a painting’s copyright?

Copyright law is admittedly a complex area which covers a wide spectrum, not least because of the arcane architecture of Copyright Act 98 of 1978 as well as attendant litigious work embarked on over the years. Nevertheless, it is of paramount importance to understand the pillars underlying this lucrative area of Law, especially for an ordinary artist who irks out a living by creating works of art, be it on streets or in flea markets.

With paintings the focal point of this article, section 1(1)(iii) of the Act provides that, “artistic works”include    (a) paintings, sculptures, drawings, engravings and photographs;

  (b) works of architecture, being either buildings or models of buildings; or

  (c) works of artistic craftsmanship not falling within either paragraph (a) or (b).

Importantly, in order for a painting to qualify as an artistic work and enjoy Copyright protection, absolutely no regard is had to the artistic quality of, for example the painting, or even the eminence of an artist who created it.

In terms of the Act and subject to exceptions that will be set out below, the copyright ownership in a painting vests in the artist who created it, or the “author” in the parlance of the Act. To complete the picture and for brevity, section 1(1) (iv) provides that, “author”, in relation to:

(a)a literary, musical or artistic work, means the personwho first makes or creates the work;

(b)a photograph, means the person who is responsiblefor the composition of the    photograph;

(c)a sound recording, means the person by whom thearrangements for the first fixing of the sounds of a performance or of other sounds were made;

(d)a cinematograph film, means the person by whom the arrangements for the making of the film were made;

(e)a broadcast, means the Corporation;

(f)a programme-carrying signal; means the Corporation.

The all-important question regarding what type of protection the author, and specifically a painter, enjoys in relation to their painting and/or work of art is to be found in section 7 which provides that Copyright in an artistic work or any substantialpart thereofveststhe exclusive rightto do or to authorise the doing of any of the following acts in the Republic:

(a)Reproducing the work in any manner or form;  

(b)publishing the work;

(c)including the work in a cinematograph film or atelevision broadcast;

(d)causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unlesssuch service transmits a lawful television broadcast,including the work, and is the original broadcast;

(e)making an adaptation of the work;

(f).doing, in relation to an adaptation of the work, any of.the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Importantly, all these rights are to be enjoyed by the author to the exclusion of all other persons. As set out above, there are exceptions to the general rule that the author remains the owner of the copyright in a painting. This would be the case when the artist is commissioned to create a painting, where the copyright owner would be the person who commissioned the painting, or when the artist creates the work in the course of his employment, where the employer would then be the copyright owner.

In addition, Copyright can still be transferred through an assignment agreement entered into by and between any current copyright owner and any new owner of the painting. The owner who signs away and transfer his rights in the painting is called the assignor. It follows therefore that even the person who commissioned the painting which was created by the painter may in this way also vests ownership of the painting back to the painter by signing away his copyright ownership (qua assignor) in the painting back to the painter.

Copyright ownership, like any asset, forms part of a person’s estate and therefore falls to devolve in terms of either testamentary disposition or through the laws of intestate succession where a person dies without living a will. To this end, section 5(3) of the Act provides that Copyright in literary or musical work or an artistic work, other than a photograph, shall subsist for fifty years from the end of the year in which the work is first published.

Through ownership of copyright in his painting, the painter is able to permit use of his copyright-protected painting to another person. This is called giving license to the permitted user of the painting, and the license would ideally detail the purpose for which the license is granted, the duration, the fee payable for such permitted use, etc.

It is curiously noteworthy that if one buys a painting, for example at a flea market, ownership of the copyright remains vested with the painter and is not by means of such sale necessarily transferred to the buyer who may be an avid art collector who may have on the spur of the moment loved and then and there bought the painting. As alluded to above, something more (an assignment) is required to transfer copyright ownership to the buyer.

From the perspective of the buyer, it means that while he may hang the painting on his office or home wall, he would be encumbered by the copyright protection enjoyed by the painter and will not be able to do all those things set out in section 7 which are the sole preserve of the painter as the copyright owner.

Frank Setati
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