Q&A: On art contests and artists’ copyright
By Karen Ocampo Flores
President, FILVADRO
On 25 September 2012, Joel E. Ferraris, a Filipino artist based in Hongkong, posted a set of questions on FILVADRO’s Facebook wall regarding some of the rules of the ongoing Tanaw: Bangko ng Sentral ng Pilipinas (BSP) Art Competition (http://www.bsp.gov.ph/events/2012/MM/Entryform.pdf). The questions are relevant not only to the said art contest, but to all other competitions where winning artworks become the property of the organizers upon he awarding of purchase prizes.
Essentially, we would like artists to consider carefully the details of conformes or contracts that they sign with regard to the sale, transfer or acquisition of their artworks and their intellectual property rights. Copyright cannot be transferred to the buyer or new owner of an artwork without the artist signing a proper deed or document assigning the copyright. An artist’s copyright also has a time limit and cannot be assigned forever.
In connection with Mr. Ferraris’ inquiry, FILVADRO issued an email and a letter to Ms. Regina Mercedes C. Cruz of the BSP Corporate Affairs Office on 16 October 2012. To date we have not received a reply.
Nonetheless, we think that artists should benefit from a discussion of such copyright concerns. We have synthesized Mr. Ferraris’ questions with each receiving an answer from FILVADRO Legal Consultant Mark Robert Dy:
1. According its 2012 Rules and Regulations,”BSP shall have perpetual intellectual property rights over prize-winning works and other non-winning works it may acquire, including the right to use, produce or reproduce, prepare derivative works of the designs for whatever purpose and whichever form as may be deemed fit by (competition sponsor/organizer) without further compensation to the artist or his heirs and assignees. Furthermore, the 1st, 2nd, and 3rd prize winners may not use their entries for any other purpose or submit their entries to other competitions/contests.” Why would the organizing/sponsoring institution of this art competition state this in its competition rules?
ANSWER: Artists may legally assign their economic rights to another person or entity as long as they do it in writing (IP Code, Sec. 180). The organizer of this contest may require such assignment as a condition for participation. If the artist wishes to join the contest, he or she must abide by the rules, otherwise, he or she can always choose not to participate.
Nevertheless, the artist cannot assign perpetual intellectual property rights over the material submitted because intellectual property rights, specifically copyright, cannot last forever. The artist may only assign the copyright up to the full duration of 50 years after the author’s death (IP Code, Sec. 213).
Furthermore, only the economic rights may be assigned. The artist’s moral rights may not be assigned to another person or entity (IP Code, Sec. 198).
The application form may serve as an assignment of copyright if it clearly states that the artist assigns his/her copyright to BSP and it is signed by the contestant. There is no particular form needed but the assignment must be clearly understood signed by person assigning the right.
2. Is it not obvious that because the artist’s signature is affixed on the art piece and therefore perpetually have the mark of the Artist on it means that the intellectual property rights belong to the artist despite the fact that the artwork was sold to someone or an institution?
ANSWER: An artist’s signature does not control the ownership of the copyright over the work. The ownership of copyright is determined by law or contract.
One must not confuse economic rights with moral rights. Economic rights may be assigned to another person or entity while moral rights are retained by the author of the work no matter who owns the economic rights.
An artist owns copyright from the moment he or she creates something original. This copyright is automatically vested in the artist. Copyright may be assigned to another person or entity in writing.
3. What happens in the event that the artwork with the artist’s signature was restored by someone else, but the restorer failed to restore it to its original form? In case the artist no longer has sole ownership of the intellectual property rights to the artwork, will he/she be bypassed; thus the artwork could be restored in any other form at will by the restorer or else the owner of the artwork could have anything changed in it?
ANSWER: An artist whose work has been damaged by an attempt to restore it will be able to sue the restorer for violation of the artist’s moral right of integrity (IP Code, Sec. 193.3). The artist retains his or her moral rights even if he or she already assigned the economic rights over the work to another person or entity.
4. What’s the use then for an artist’s signature to be affixed on the painting plus the painting bearing the name and image and integrity of the artist if he/she has no intellectual property rights over the artwork because the art competition’s rules said that the intellectual property rights now belong to someone else or to an institution?
ANSWER: An artist’s signature or name may serve as evidence of authorship (IP Code, Sec. 219.1). However, this does not always mean that copyright belongs to the author. Copyright or economic rights may belong to another person like an employer (IP Code, Sec. 178.3) or an assignee (IP Code, Sec. 180).
In this case, the economic right may be assigned by the artst to the organizer of the competition according to the rules, but only through a proper document signed by the artist.
5. If in the event that a winning artwork be sold (and subsequently be resold) by the sponsoring organization/new owner/art collector to other parties/art collectors, will the artist/original author of the artwork retain the resale rights to the artwork if, by agreeing to the art competition rules, he/she agreed to transfer the sole and perpetual ownership of it to the sponsoring organization of the art competition?
ANSWER: The artist retains his/her right to the proceeds from subsequent transfers (resale right). This right cannot be transferred (IP Code, Sec. 200). However, the artist must take steps in ensuring that this right is enforced by requiring the assignee to report any subsequent transfer or lease. The artist may also exercise this right through a collective management organization or CMO.
Thank you to Mr. Ferraris and to Atty. Dy for this exchange. If you have questions about copyright for visual arts and designers, please feel free to contact us at [email protected]
FILVADRO is the only CMO for visual arts and design in the Philippines. It is led by prominent visual artists and was established through a grant from the Norwegian Coptright Development Assciation (Norcode) and with the assistance of Filipino Society of Composers, Authors and Publishers (FILSCAP). It is recognized by the World Intellectual Property Organization (WIPO), and cooperates with Intellectual Propperty Office of the Philippines (IPOPHL), the International Confederation of Authors and Composers Societies (CISAC), and its sister CMOs for visual arts such as Société des Auteurs Dans Les Arts Graphiques et Plastiques (ADAGP) in France and Bildkonst Upphovsrätt i Sverige (BUS) in Sweden.
FILVADRO collectively manages copyright for its members, whether they are professionals or students. When an artist or the heir/assignee of an artist becomes a member of FILVADRO, he/she assigns his economic rights and resale right on specific original works of art to the organization. FILVADRO collects copyright fees on the member’s behalf in the Philippines and in other countries, depending on the country’s copyright laws. Like other CMOs, FILVADRO is entitled to fifteen percent (15%) of the amount it collects for artists to help sustain the organization. Overall, FILVADRO helps advocate, protect and defend artists’ economic, moral and resale rights.
THE BASICS ON ARTISTS’ COPYRIGHT:
An artist’s rights to his/her intellectual property is covered by copyright. Copyright exists as protection for creative works under the Intellectual Property Code (Part IV of Republic Act 8293). It refers to the set of economic and moral rights that primarily belong to the creator or artist upon the creation of an artwork.
.Economic rights may be licensed or assigned in part or in whole within a specific period of time, while moral rights cannot be assigned and may only be waived and be transferred after the artist’s death to a legal heir or assignee. Economic and moral rights under copyright last through an artist’s life and 50 years after death.
Economic Rights are about the right of the creator/artist or copyright owner to carry out, authorize (with or without a copyright fee) or prevent the following:
Reproduction of the whole or substantial part of the artwork;
Adaptation, abridgement, translation or other transformation of the artwork into derivative works;
Sale or transfer of the original artwork and its copies;
Creation of copies or rental of original artworks, regardless of who has ownership of the same artwork;
Public display of the original artwork and its copies; and
Public performance or any form of broadcast or media communication of the artwork.
Moral Rights, among other provisions, allow the artist to:
Require that his/her artworks be attributed to him/her. This means that the arist’s name should be prominent on all copies/reproductions of the artwork, and in connection with the public use or display of the artwork;
Make any alterations of his/her artwork; or else withdraw it from public use or display;
Object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his/her artwork which would be prejudicial to his/her honor or reputation; and
Restrain the use of his/her name with respect to any work not of his/her own creation or in a distorted version of his/her artwork.
Further to these rights under copyright is the artist’s Resale Right or right to subsequent transfers, which means that even after an original painting or sculpture has been sold or transferred, the artist is entitled to up to five percent (5%) of the gross proceeds of the artwork’s resale or rental. Like Moral Rights, the Resale Right cannot be transferred and may be collected by the artist through his/her lifetime and by legal heirs up to 50 years after death.
