Protection of rights to works of fine art

Works of fine art have been of particular value for many years, both for the authors themselves and for art connoisseurs. However, only a few authors are aware of their rights and how to protect them. In addition, in practical activities, issues of lawful acquisition, use and alienation of these works often arise.

This article will be devoted to these issues.

In accordance with paragraph 1 of Art. 1255 of the Civil Code of the Russian Federation “intellectual rights to works of science, literature and art are copyrights.”

In accordance with paragraph 1 of Art. 1259 of the Civil Code of the Russian Federation, works of painting, sculpture, graphics, design, graphic stories, comics and other works of fine art are subject to copyright.

Before talking about ways to protect rights to works of fine art, it is necessary to determine what is included in the content of the rights of the author. The artist's copyright regime includes personal non-property rights:

1.1. Right of authorship (clause 1 of article 1265 of the Civil Code of the Russian Federation).

The right of authorship means the right to be recognized as the author of a work.

1.2. The author's right to a name (clause 1 of Article 1265 of the Civil Code of the Russian Federation).

The author's right to a name means the right to use or permit the use of a work under his own name, under a fictitious name (pseudonym) or without indicating a name, that is, anonymously.

It is impossible to waive these two rights; these rights are inalienable. That is, if a person alienates a work of art, he alienates the exclusive (property) rights, but at the same time retains the copyright in the work.

1.3. The author’s right to the inviolability of a work (Article 1266 of the Civil Code of the Russian Federation).

This right means that no one, without the consent of the author, has the right to in any way make changes to the work, supplement, shorten, or distort it. Moreover, in case of violation of the right to integrity of a work, the author has the right to judicial protection, including, to demand protection of his honor, dignity and business reputation, both during his life and after death on the initiative of interested parties.

1.4. The author's right to publish the work.

The right to publish a work means the right to bring the work to the public, that is, the publication of the work, public display, demonstration of the work at an exhibition, on online platforms, etc.

If a work is published without the consent of the author, the author can protect his rights in the manner prescribed by law.

The second group of author's rights includes exclusive (property rights). These rights include the right to use and transfer the work to third parties.

In accordance with paragraph 1 of Art. 1270 of the Civil Code of the Russian Federation, the author of a work or other copyright holder has the exclusive right to use the work in any form and in any way that does not contradict the law.

The use of a work of fine art may be considered:

• reproduction of the work;
• distribution of the work;
• public display of the work;
• import of the original or copies of the work for distribution purposes;
• rental of the original or a copy of the work;
• public performance of the work;
• broadcast message;
• processing of the work (processing, film adaptation, dramatization, etc.);
• making the work available to the public in such a way that any person can access the work from any place and at any time of his own choice.

However, when processing a work, you must be extremely careful, since this action may violate the rights of others.

The third group of rights includes the right to follow and the right of access of the author of the work.

The right of succession in accordance with paragraph 1 of Art. 1293 of the Civil Code of the Russian Federation means the right of the author of a work to receive remuneration upon resale of the work. This right is inalienable, but after the death of the author it can pass to his heirs for the duration of the exclusive right to the work.

Right of access in accordance with paragraph 1 of Art. 1292 Civil Code of the Russian Federation means that the author of a work of fine art has the right to demand from the owner of the original work the opportunity to exercise the right to reproduce his work.

How can an artist have copyright?

In accordance with Art. 1257 of the Civil Code of the Russian Federation “the author of a work of science, literature or art is recognized as the citizen whose creative work it was created.” In accordance with paragraph 3 of Art. 1259 of the Civil Code of the Russian Federation “copyright extends to both published and unpublished works expressed in any objective form, including in written, oral form (in the form of public utterance, public performance and other similar form), in the form of an image , in the form of sound or video recording, in volumetric-spatial form.” At the same time, according to clause 4 of Art. 1259 of the Civil Code of the Russian Federation, registration of a work is not required for the emergence, implementation and protection of copyright. Thus, the criteria for the protection of copyright objects are: the presence of creative rights and an objective form of expression of the work.

At the same time, the legislator does not provide clear criteria for determining creative contribution. In view of this, in practical activities, the question of the presence of a creative contribution in a work is decided individually, in most cases with the help of specialists and experts from the field of art. However, making this criterion excessively subjective has a direct impact on judicial practice and even contributes to a decision not in favor of the authors.

When talking about works of fine art in particular, many legal and art critics have the same question - whether there is a creative contribution in every work created or not. This question is so ambiguous because when painting a picture, the author in one way or another uses creativity, and therefore makes a creative contribution to the creation of the picture. Even copies of great paintings will never completely replicate the original; it is almost impossible to do this.

Just for this reason, many artists believe that by copying any picture, they will not violate copyright. However, this opinion is incorrect; these actions will be recognized as processing, which is a violation of copyright and entails civil, administrative and criminal liability.

Continuing the question of determining the creative contribution to a work of fine art, I would like to touch upon contemporary art. The difficulty of determining the protectability of works of contemporary art lies in the presence of fairly simple, uncomplicated forms, the use of everyday objects to create an exhibition. In this regard, the question arises: will the depicted geometric figure be protectable or will glass folded into one stack be protectable? This issue is quite controversial both in jurisprudence and in the field of art itself. Although most lawyers are of the opinion that the simple shapes depicted are not copyrightable, I have a slightly different opinion for the following reasons.

First, when creating a work of art, the author in most cases contributes a certain meaning. Many art critics regarding modern art express the opinion that the essence of modern art is not the image itself, but the meaning intended by the author of the work.

For example, the previously discussed painting “Black Square” by Kazimir Malevich has several meanings, one of which is “the death of old, figurative art and the birth of a new art of pure forms.” Kazimir Malevich became the founder of the “suprematism” movement and considered the square the most perfect geometric figure. In addition, Kazimir Malevich considered this painting to be a symbol of eternity.

Secondly, when creating a work, the author chooses the color, texture, and arrangement of objects. The same simple lines can be arranged in such a way that the result is a completely original piece. Therefore, in my opinion, one should not be so critical of contemporary art and recognize such works as unprotectable.

However, authors should keep in mind that when depicting simple forms, there is a high risk of illegal copying, and there is also a high probability of being left without protection of their rights.

How can you legally use works of art?

Works of art are subject to copyright and, therefore, for their legal use it is necessary to obtain the appropriate permission from the author.

Whose permission do you need to get?

• Artist.

Copyright is valid for the entire life of the author and 70 years, counting from January 1 of the year following the year of death of the author. That is, if the artist is still alive, then it is definitely necessary to obtain permission from him by signing a license agreement/concluding an agreement on the alienation of the exclusive right, in the event of alienation of a work of art.

• Heirs, if the exclusive right has been inherited.

However, this right, in fact, is valid only for 70 years after the death of the author, after which the painting becomes public domain. The consent of the heirs to use the painting is also formalized by a license agreement or other agreement on the disposal of the right (donation, alienation, etc.).

• Museum.

A work of art may go into the museum's collections; then permission to use the painting must be obtained from the directorate of the said museum.

Also, the law provides for cases when permission to use paintings is not required:

1. The painting is in the public domain, except in cases where the painting is part of the Museum Fund of Russia;
2. The painting has a folkloric character;
3. The author has provided an open license.

Methods for protecting works of fine art

In accordance with Art. 1252 of the Civil Code of the Russian Federation Protection of exclusive rights to works of fine art is carried out, in particular, by presenting the requirement:

- on recognition of a right - to a person who denies or otherwise does not recognize the right, thereby violating the interests of the right holder;

- on the suppression of actions that violate a right or create a threat of its violation - to the person committing such actions or making the necessary preparations for them, as well as to other persons who can stop such actions;

- on compensation for losses/payment of compensation;

- about the seizure of material media;

- publication of a court decision on a violation, indicating the actual copyright holder.

Judicial protection of the exclusive right to works of fine art

In accordance with Art. 1301 of the Civil Code of the Russian Federation “in cases of violation of the exclusive right to a work, the author or other copyright holder, along with the use of other applicable methods of protection and measures of liability established by this Code (Articles 1250, 1252 and 1253), has the right, in accordance with paragraph 3 of Article 1252 of this Code, to demand at his option from the violator, instead of compensation for damages, payment of compensation:

• in an amount from ten thousand rubles to five million rubles, determined at the discretion of the court based on the nature of the violation;
• twice the cost of counterfeit copies of the work;
• twice the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the work in the manner used by the infringer.

At the same time, the amount of compensation under clause 1 of Art. 1301 of the Civil Code of the Russian Federation is determined at the discretion of the court based on the nature of the violation. But despite the possibility of filing a claim for compensation in the amount of up to 5,000,000 rubles, the courts, as a result of considering a dispute in the field of protection of works of fine art, most often award compensation in an amount not exceeding 150,000 rubles for one violation. However, there are exceptions in judicial practice.

When protecting his right to a work of fine art, the copyright holder often has to confirm his authorship. Therefore, it is necessary to think about recording authorship in advance, already at the stage of creating the work.

You can register copyright in a work of art in the following ways:

1. Indicate on the work (as well as on drafts when creating the work) the year of first publication of the work, the date, name or title of the copyright holder and the copyright symbol - ©. It is recommended that you provide this information each time you create a work.
2. Deposit the work (at the same time, depositing is not a presumption of authorship).
3. Notarization.
4. Publishing a work under your own name (indicating the date of publication).

There are also other ways of fixing copyright on a work of fine art, however, in this case it is necessary to take into account the specifics of the object. Most often, works of fine art are created in objective reality (not online), therefore, fixing copyright on a painting online may not give the expected result, since in this way copyright can be fixed specifically on a photograph, and not on a painting. Thus, having information about the complex of rights, methods of fixing and protecting copyright, artists can count on successful protection of their right to a work.