© 2019 by Vishali Bawa



According to Julian Radcliffe, chairman of the Art Loss Register, “The Art trade is the least transparent and least regulated commercial activity in the world” As one of the world’s last unregulated markets, art business continues to remain relatively untouched by the creation of purpose-built strict laws. However, higher ethical standards have become an increasingly important element in the branding and rebranding of museums and art dealers. Arguably, these codes of ethics are aspirational and concerned with a politically correct public image.

Intellectual Property Rights have a prominent effect on the creators of these art works - the artists and the audience who engage with these and might want to use them for further research, study, inspiration, etc. When I spoke to people from the creative community, I was amazed by how little understanding and how much misinformation prevails on the subject of Intellectual property. For eg. Patents provide the exclusive rights to decide how, when, where and who can use your invention. Visual artists generally don’t create the type of work that falls under patents. For example, you cannot patent a painting. Paintings are the purview of copyright. However, the steps in creating something or even the paint itself, may receive a patent. Visual artists or member of the visual art community may create new and useful inventions, not even realizing that they may be patentable. Artists often design new methods for crafting artistic works, or experiment with new formulations and materials.


Art is a form of creative expression and the creator has the right to own his/her artwork. The copyright law makes this possible. The personal theory aligns directly with the art industry where in, highly expressive intellectual activities and art works should receive legal protection and the Artists should be permitted to earn respect, honor, admiration, and money from the public by selling or giving away copies of their works, but should not be permitted to surrender their right to prevent others from imitating, mutilating or misattributing their works. The Moral Rights makes this possible. ‘Moral rights’ for example the ‘Visual Artists Rights Act’ gives Artists control over public disclosure of their work, credit for their work and protection to their work from being destroyed or mutilated. However, this is not the case if the artwork of the artist is in public domain. According to a landmark 1999 federal district court ruling, The Bridgeman Art Library, Ltd., Corel Corporation, “exact reproductions of public domain artworks are not protected by copyright.” Despite this court decision, museums, other institutions, and even individual photographers still claim or imply that there reproductions of photographic images of public domain artworks are copyrighted and that therefore they can demand fees for licensing and use. The situation is confusing.


The copyright status indicates that the purpose of these laws is to provide incentives for artists efforts that will in turn benefit the people and society at large, which makes it a utilitarian principle as it leads to wealth creation for artists and maximization of audience welfare by their ability and willingness to pay for the works (eg. paintings) or access to the works.(eg. Visiting Museums) The IP right helps with fair access, trade and transactions between the artists and audiences. The labor theory can also be applied in the art world as intellectual labor is a far more important contributor to the total value of the creation than the raw materials such as set of ideas, paints, cultural heritage. universal facts, languages, etc.


Price Valuation is one of the major issue in the art market. The readings ‘Theories of IP’ poses a question if the producer of an intellectual product should be permitted to engage in price discrimination. A lot of art galleries change the price of an art work depending on who the buyer is. (i.e. higher price for the richer) However, price discrimination also enable access to more customers/ users from different demographics. It has its drawbacks and advantages. In that case, would it still be considered as fair or ethical?


In today’s internet era, there is an increase in digital presence of the art market - gallery, museum websites, artist websites, etc. The Internet exposure has brought art to people all over the world, increasing the audience engagement. Most of the content on the internet these days is for free which makes people believe that they can use it however they want. Therefore, IP rights and the awareness of these rights on the internet has gained even more importance.


What degree of similarity between two artworks could lead to an infringement issue? How can we stop people from using protected works? Problem of proportionality has been a prevalent issue in the art industry. How far do the rights of an artist go? Artists are often under economic pressure to sell their works for relatively small amounts early on in their careers, and they therefore have an ethical right to share the profits made by dealers in the event of their works growing in demand (royalty). It is also perceived as unethical that the resale right has not been applied by major art dealing nations such as the USA.


IP rights are directly related to ethics and social responsibility to avoid production of fakes, forgeries, parodies, to develop a rich intellectual culture where the audience has better access to a wide array of art works and their information (history, origin, description, resources, cultural relevance, etc) and to develop a rich artistic tradition by making a rich stock of illustrative and comparative collections of art available so as to foster a tradition of artistic innovation. To create an engaging culture where all people are able to participate in the process of making cultural meaning without tampering with the original art works in existence.

- Vishali Bawa