All About Estates

Art Copyright and Estates

The Derby Day (1856-58), William Powell Firth – The Tate Britain, Public Domain

Copyright & Art

Ernest Gambart was a pioneering art dealer and showman in Victorian England who uncovered the value of art copyright.  His specialty was a triple play.  First, he mounted an exhibition (typically a single painting such as William Powell Firth’s The Derby Day); second, the sold the work; and third, he produced prints for sale after securing the copyright. Unlike contemporary dealers, his biggest revenue generator wasn’t the sale of the painting. It was the prints and exhibition tickets.

Gambart (1814-1902) was one of the first art dealers to recognize that art objects have two distinct interests. (Well, three if we get into “moral rights”, but that’s another discussion.) The object itself and the intellectual property or copyright.

What do these divided interests mean for estate planning and administration?

Below are some issues and resources:

  1. Most art is gifted as an object and the copyright is retained by the artists or the estate of artist. Art for personal use will not typically trigger any intellectual property claims.
  2. If the estate belongs to an artist, the issues are more complex. In Canada copyright is automatically passed to the artist’s estate for 25 years, and should be addressed in the will. While it is possible for an artist to bequeath copyright to a third party – such as a person or charity – in Canada rights revert after 25 years to the artists estate and extend for another 25 years for a total of 50 years. This is a reversionary interest.  Theresult is some estates may be unaware that they own copyright of a deceased artist.
  3. In Canada, the primary organization for promoting art copyright is CARFAC (Canadian Artists’ Representation/Le Front des artistes canadiens), a not-for-profit that advocates for and protects the interests of artists. CARFAC’s website has some helpful tools for artists, such as a minimum fee calculator. Its advocacy campaigns include a successful Supreme Court decision and subsequent minimum fee agreement with the National Gallery of Canada.
  4. The administration of copyrights – licenses, fee collection, etc. — may be done privately, but many artists work through copyright collectives. The largest copyright collective in Canada is CARCC (Canadian Artists Representation Copyright Collective Inc.). Increasingly, web scouring software spotting images are being used.
  5. Copyright fees are more likely to be incurred by companies that use images for promotional purposes or galleries rather than private citizens. However, collectors should be aware that over 93 countries have “artist’s resale rights”, although not the US or Canada. The right provide the artist/copyright holder with a percentage of the sale price of a work in a secondary market, which may be up to 5% of the fair market value. This right will reduce the value of a work for the seller, but recognizes the significant contribution to the artist.
About Malcolm Burrows
Malcolm is a philanthropic advisor with over 30 years of experience. He is head, philanthropic advisory services at Scotia Wealth Management and founder of Aqueduct Foundation. Views are his own.

1 Comment

  1. Tom Hamer

    July 19, 2018 - 2:24 pm

    That was a very interesting post. Thank you for the information.

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