Does Art Need Copyright After All

Abstract

As part of my law practice, I am often asked to counsel clients concerning the purchase and sale of works of art, and questions about the copyrightability of these artworks come up in various ways. Unlike some other forms of cultural production, the main way visual artists benefit economically from the production of their work is not from royalties from the sale of copies of the work, but rather is from the sale of the physical artwork itself. Perhaps that is why, putting aside photographers, visual artists do not commonly register their works in a routine manner. Registration certainly occurs, but it is not an artist’s everyday practice to register a work after she creates it. This can be frustrating because when considering whether and how a work is protected by the copyright law, one of the first things lawyers do is look to see whether there is a copyright registration for the work.