When you buy and sell art, it’s important to remember that although an artwork itself may change hands, the rights to reproduce it or exploit it commercially through copying it remain with the artist and their heirs right up to seventy years after they have died.
Likewise, just because you have bought a photograph doesn’t mean that you can set up a business selling copies of it if the photographer’s rights are still active.
I was reminded of this by news of an attempt to sell an NFT (Non Fungible Token) of a Jean-Michel Basquiat drawing coming unstuck recently.
Basquiat, a prodigy mentored by Andy Warhol, succumbed to heroin addiction at the tender age of 27 in the late 1980s. Today, he is just about the hottest artist on the market, with top works selling in the tens of millions of dollars. Understandably, his estate guards his rights jealously and took exception to a digital version (in NFT format) of one of his drawings being offered for sale without permission.
As well as the question of copyright, the sale raised a slightly more obscure but no less important issue: that of moral rights. This is because the seller, who also owned the original drawing, offered the winning bidder of the NFT the option of destroying the original drawing. It is thought that the destruction of the original would vest more value in the NFT. However, while someone may acquire a work of art, it is not in their gift to damage or wilfully destroy it, or to exploit it in any other way that might damage the artist’s reputation while the artist’s rights remain active.
This is the area of artist’s rights that is often overlooked yet has just as valid a call on control of artworks as copyright.
Technology may make all sorts of new things possible, but it does not remove longstanding rights to allow them to happen.
