Do Artists Always Retain Their Copyrights?

No, they do not.

I posted earlier this week on the Mackie v. Hipple copyright lawsuit going on in Seattle, arguing (among other things) that it would be interesting to find out whether or not there was a written agreement between the artist and commissioning party to assess whether or not the artist, in our case Mackie, had in fact transferred or shared the copyright to his sculpture. Donn Zaretsky disagreed, and today stated that “in [his] experience too the artist always retains the copyright.” [italics mine]

I disagree.

For one, I’m a bit shy of dealing in absolutes. The assumption that artists always retain their copyrights would, in this case, hinge on which artists we’re talking about. Although not a huge fan of anecdotal evidence, but in order to not run afoul of confidentiality rules, I will say that some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel. The artists I meet do not have the financial resources that would allow them to maintain a lawyer on retainer, nor do they, for whatever reason, have the knowledge of how to obtain pro bono counsel or representation (I work for a pro bono organization; Donn for a law firm). If artists always retained their copyright, this “generally accepted practice” would not have encouraged Mass MoCA to sue Christoph Büchel and make, among many other claims, that they owned or were joint-owners of his copyright.