Vanderbilt Journal of Transnational Law


W W. Kowalski

First Page



This Article presents an analytical and theoretical discussion of how an artist's artwork should be treated once it enters the global marketplace. Considering only the visual arts, the answer is short and simple: this Author believes that all, or at least the better-known legal systems, uphold the rights granted to the artist when the work was created. Consequently, the artist retains some rights not only as the artist's intellectual property, but also in its tangible manifestation, for example, sculpture or painting--traditionally called corpus mechanicum--even though he does not own this particular sculpture or painting anymore. This, however, is only a simple explanation: the remainder of the problem is decidedly more complex. Transfer of ownership of the art object to a third party results in the imposition of the artist's rights on the property rights of the new owner of the work. In law this phenomenon is not anything new or special: similar examples exist in other areas. For example, when there are adjoining pieces of real estate, property law differentiates between certain competing neighbors' rights. As is easily seen, not all rights are created equal; on the contrary, some rights are mutually exclusive, thus creating areas of potential conflict. The problem does not exist as long as the artist retains the ownership of his work and its material embodiment because he is the only owner of both aspects of the work. The moment of sale is the beginning of a hypothetical conflict with the new owner. Sometimes the hypothetical conflict becomes very real and requires application to a court for resolution. The judgment in such a case depends on the legal system in question, but regardless of the jurisdiction, it is often very difficult to gauge the outcome of such a conflict. Courts are not uniform in their decisions and the legal systems vary widely--even in the increasingly global world. This diversity results from, on one hand, a different appraisal of interests which come into play, and on the other hand, the enduring nature of some philosophies about artists' work and the work's purposes. Understanding these differences is fundamental to understanding the status of an artist versus the status of his work. Therefore, it is appropriate to start with some historical background. It will be necessary to concentrate on so called "moral" and "moral-like" rights; only these rights can be retained by the artist after the art object has been sold or disposed in another way.