Copyright Myths # 4 – “I Bought the work, I can do what I want with it.” (Part 1)

EPGD Law Copyright Law

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.

If you would like to read the second part of this blog, click here to continue.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*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.*

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Silvino Diaz

Silvino E. Diaz’s practice ranges from Civil and Commercial Litigation to Entertainment and Intellectual Property Law. Silvino has earned a reputation as one of Puerto Rico’s foremost advocates for independent musicians and artists. As a result of his sustained commitment to creative industries, he was named Professor of Intellectual Property Law at Atlantic University College (Guaynabo, PR) – the Caribbean’s leading digital arts institution – where he spearheaded the “Introduction to IP” course for both the graduate and undergraduate programs, and was appointed by the Office of the President to develop an Intellectual Property graduate curriculum, where he served until moving to Miami in 2017. He is the founder of the service known as Starving Artists, where he offers innovative business and legal counsel for artists and creatives.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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