Who Owns the Soul of a Painting?
The poets and the song writers talk of possessing the female objects of their affections "body and soul". They make a distinction between the physical properties and characteristics of their lady loves and their intangible, spiritual or ethereal qualities. The law has the same approach to a painting, termed an "artistic work" in the law of copyright. It distinguishes between the physical or corporeal object, being a piece of canvas or like substance daubed with paint and usually surrounded by a frame made of wood, plastic, metal or some other substance, on the one hand, and the intellectual property embodied in the painting, namely the copyright. Copyright is an item of incorporeal property and it comprises essentially the right to control the use of the painting in activities which are commonly concerned in its commercial exploitation, such as reproduction, publication etc. The painting which hangs in the art gallery is therefore an article which embodies two separate and distinct forms of property and it is important to distinguish between them because they can be, and frequently are, owned by different persons and carry with them different and even conflicting claims on the article. The song writer and poet´s desire to possess a woman completely is not always capable of being matched by the art lover and the painting which is the object of his desires. He frequently possesses the body but not the soul of the painting.
The corporeal aspect of a painting - its body - is governed by the principles of the law of things while the copyright in the painting - its soul - is governed the law of copyright. Ownership of the body of the painting is transferred by the delivery, whether actual or constructive, of the painting by the owner to the acquirer with the intention on the part of both parties that ownership of it should pass to the acquirer. In practice, usually a consideration is paid for the transfer of the ownership. As the owner of the body of the painting the acquirer is free to use it in any way compatible with his ownership of a corporeal article and he can hang it on his wall, put it in his desk drawer, give it to someone else or even destroy it. Ownership of the body of the painting does not however necessarily go hand in hand with the ownership of the soul of the painting. As far as the law is concerned the soul of the painting is not an aspect of the body and the only real relationship between them is that they both reside in the same article. Under the Copyright Act, transfer of the ownership of the soul of a painting between living persons takes place by assignment and for an assignment of copyright to be valid it must be reduced to writing and the written document must be signed by the owner or assignor of the copyright. Ownership of the body and soul of a painting will only pass to another simultaneously in the event that delivery of the painting with the requisite intention is accompanied by the person disposing of it, the copyright owner, entering into an assignment of copyright in writing. The Copyright Act is adamant that no transfer of ownership of copyright, or assignment, has any effect unless it is embodied in a signed written document.
When you purchase the painting of your desires you do not acquire the ownership of the copyright in that painting unless the current owner of that copyright - usually initially the artist - grants to you a written assignment of copyright. In practice artists do not frequently divest themselves of the ownership of the copyright in their paintings. Acquiring only the body of a painting, and not its soul, means that you are precluded from performing any of the copyright protected acts in relation to the painting which has become your property unless those acts are authorised explicitly or impliedly by the artist, assuming that he is the copyright owner. These so-called "restricted acts" which make up the copyright in a painting include reproducing the painting in any manner or form, issuing copies of the painting to the public, including the painting in a television broadcast and making an adaptation of the painting. In the absence of an assignment of copyright these activities remain the exclusive preserve of the artist or other copyright owner. This leads to a strange dichotomy because the owner of the painting is free to do what he wants with the actual article but he cannot reproduce it or carry out any other activities which would normally amount to commercial exploitation of it, while on the other hand the copyright owner is entitled to undertake all these activities although he has no control over the presence of and physical state of the painting.
You, Mr Captain of Industry and Major Corporation, who purchase a painting for your boardroom are thus entitled to do little more than hang the painting on the wall and you cannot use it to illustrate your annual report or other company literature unless you either acquire the copyright in the painting by assignment or alternatively obtain the permission of the artist or copyright owner to make reproductions of it and publish or distribute them. The fact that you may have commissioned the painting does not alter the situation unless it is a portrait. As in life generally the mere payment of a financial consideration may be sufficient to establish a claim to the body but it takes more than that to lay claim to the soul. The making of unwarranted claims on the soul and misappropriation of the soul can give rise to retribution by the custodian of the soul. The owner of a painting who seeks to trespass on the preserve of the copyright in his painting makes himself liable to a claim of copyright infringement at the instance of the copyright owner. The cost of abusing the soul can be high.
SPOOR AND FISHER