Works of art are of interest not only to collectors, but also to ordinary buyers who are attracted by the beauty and originality of jewelry, the creative concept of a talented artist and his brush style, or the expressiveness and grace of the lines and shapes of a marble sculpture
Undoubtedly, works of art are also a reliable investment, and their value will only increase over the years.
But in order for the works, being objects of intellectual property, not to become the subject of a dispute between the acquirer and the seller or his heirs, it is important to take into account and minimize possible risks when purchasing them in accordance with the legislation in force in the country.
What risks might there be when purchasing a work of art?
Thus, when purchasing a work directly from its author, the risks of challenging the fact of purchase and sale will be minimal. Nevertheless, it is important to know and take into account the main provisions of the current legislation. At the same time, it is important to decide on the purpose of the purchase - for personal use at home and for your loved ones or for business.
If for a commercial purpose, then under copyright conditions the buyer must receive the exclusive right to use this work. Therefore, for full use of the work, it is necessary to stipulate in the contract all the essential conditions and the scope of the transferred rights, which guarantees the minimization of risks for the buyer.
It is necessary to take into account that in accordance with Art. 1291, when the author alienates his work, including under an author’s order agreement, the exclusive right to the work remains with the author (similar rules apply to his heirs), unless otherwise provided by the agreement.
At the same time, when a work is alienated by its owner, who is not the author of the work, but has an exclusive right to it, the exclusive right passes to the acquirer of the work, unless otherwise provided by the contract.
At the same time, if the exclusive right to the work has not been transferred to the acquirer of the work, he still has the right, without the consent of the author or other copyright holder, without paying him remuneration, to display the acquired original at exhibitions, in collections, catalogs, publications and transfer it for display on any platforms organized by other persons.
Without the consent of the author or other copyright holder and without paying the author remuneration, the acquirer of the original work in which he is depicted has the right to use this work at his own discretion, but not for commercial purposes, unless otherwise provided by the contract.
It should be noted that in the case of drawing up an alienation agreement between the author of a work and the buyer, for each resale of this work, during which legal entities or individual entrepreneurs can participate as an intermediary, buyer or seller (for example, a gallery, store, auction house, etc.), the author has the right to a percentage of the resale (the right to follow in accordance with Article 1293). All participants in the transaction are required to provide information necessary “to ensure the payment of remuneration to the author or organization for managing rights on a collective basis, representing his interests, including on the basis of a corresponding request from the author or organization for managing rights on a collective basis, in the manner established by the Government of the Russian Federation.” In this case, the list of information, conditions, amount of remuneration and the procedure for their payment are determined by the Government of the Russian Federation.
The right to follow is inalienable and passes to the heirs of the author for the duration of the exclusive right to the work.
About the consequences of violation of intellectual rights
In accordance with Art. 1301 on liability for violation of the exclusive right to a work in cases of its violation, the author or copyright holder has the right (clause 3 of Article 1252 of the Civil Code of the Russian Federation) to demand, at his choice through the court, from the violator, instead of compensation for damages, payment of compensation in the amount of ten thousand to five million rubles, based on the nature of the violation, or twice the cost of counterfeit copies of the work or the cost of the right to use the work, determined on the basis of the price that is usually charged for lawful use.
The court may also prohibit the infringer from committing acts of producing a counterfeit work, selling it, possessing or storing it, etc. (Article 1302 of the Civil Code of the Russian Federation), suppress their unlawful use in information and telecommunication networks, seize the work itself, materials and equipment used for its production.
