Copyright Myth #1 – “I Bought the work, I can do what I want with it.”

You sold a work in an exhibition. The buyer takes a photo and uploads it to his blog, recognizing you as an author. He hangs it in his living room but decides to pass a small brush to integrate tones more in line with his wall. He photographs his room and turns the image into a postcard. He makes two hundred copies and posts them on his blog to give away. On the back of the postcard, along with its copyright notice, he includes your name as the author of the painting.

You find out everything the buyer did with your work. You write to him reminding him that you are the author of the work and therefore, retain all exclusive rights to it. You ask him to cease and desist from his activity, or for him to purchase a license from you to authorize it. The client answers the following:

“I have not done anything illegal. I bought the work, so I can do what I want with it. It is my property like any other good. I am doing you a favor by sharing it and giving you promotion. If you were willing to exhibit it and sell it, you can’t complain if they later share it in photos. And as for the postcards, I did not violate your rights either. First, your work occupies a fraction of my image; second, I am not receiving money in return; and third, I am recognizing you as the author.”

Although his position seems fairly reasonable, he is almost absolutely wrong. The Copyright Act of 1976 grants a series of exclusive rights to the authors of original works – reproduction of the work in copies; distribution of those copies; derivative works; public display; public execution and; transmissions. These are born from the moment the work is created, and unless the author agrees to its transfer or resignation in writing, or performs it as an employee, they belong to him exclusively during his life, and 70 years after his death.

Does a Copyright Transfer to me when I buy the work?

Now, let’s examine the buyer’s arguments.  First, the purchase of the work does not transfer copyright to the buyer. By means of the purchase, the property right over the physical good is acquired – a canvas with paint on top of it. The Copyright Act provides for any transfer of copyright to be made exclusively by written agreement. Although the work is owned by the client by virtue of a lawful sale, it is limited by the rights of its author.

Second, both taking the picture of the work, and uploading it to a blog are infractions; recognizing the author does not heal anything. By law, it is the author who has the right to reproduction, and distribution of it – including blogs and social networks. The fact that the author exhibits a work, seeks its sale or publishes it online does not constitute a waiver of these rights.

What is a Derivative work?

Finally, the postcard issue helps us understand the right to derivative works. A derivative work, or adaptation, is a work like any other, capable of acquiring rights on its own. However, it is based, totally or partially, on an existing work. An example is the “Game of Thrones” series, which appropriates the literature of George R.R. Martin to adapt it to television. In this case, it is the author who retains the right to create works based on his work, and the rights they generate. A photograph of a painting constitutes a derivative work, since it uses an existing work to create a new one. Since it is not authorized by its author, and for not applying an exception in law, the postcard constitutes an infraction. The fact that the client does not receive money in return, or that the painting is a fraction of the photo, or that the author of the work is recognized, does not heal the infraction. This occurs at the time of appropriation without more – of not applying an exception in law.

Let’s continue with the example, where the buyer brushes your work to adjust it to his wall. You do not favor the intervention; however, you realize that federal copyright law does not protect you against such an alteration. It is not contemplated in the “bundle of rights.”

You are not devoid of relief. In some jurisdictions, legislation has been passed to recognize authors’ rights called “moral rights.” These contemplate the works as an emanation of the authors’ personality; and try to protect that link.

What are Moral Rights?

Moral Rights are as follows. Firstly, the right of attribution refers to the author’s power to be recognized as the creator of his work, and therefore the power to affirm that he is not recognized as the author of a work he has not created. It also implies the alternative of attributing a pseudonym or remaining anonymous. Secondly, the right of withdrawal (“withdrawal”) allows the author to renounce authorship when his work no longer matches his convictions. It is the option to choose not to associate with your work. Thirdly, the right of access gives the author the right to demand reasonable access to his/her original or unique copy, when it’s is in possession of another, in order to exercise his or her copyright rights. However, access cannot impair the comfort of the holder, who will be compensated for the expenses of exercising this right.

Fourthly, the right of integrity ensures that the work is not modified or used in a way that contravenes the interest or reputation of the author. It includes the following rights: prevent mutilation, or alteration of the work; prevent the public presentation or distribution of a mutilated or altered work; and prevent the intentional or negligent destruction of an original or a single copy.

Applied to the intervention of the buyer, a single brush, however small, constitutes a violation of this right.

These rights exist regardless of your registration. But unlike the assets, which are transferable by written agreement, morals belong exclusively to their author, except for integrity. Works created by employees as part of their employment functions, and works made to order (“work-for-hire”) do not generate moral rights. Non-transferable, although waived in part, moral rights are valuable tools when negotiating the use and / or sale of works.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*