Buying and Selling Art
The purchase or sale of an artwork can involve considerably more than agreeing a price and transferring possession. Questions may arise concerning ownership, provenance, authenticity, attribution, copyright, contractual terms and the history of the object.
These issues become particularly important where an artwork is valuable, has changed hands many times, has an uncertain history or is being bought or sold across international borders.
O’Connor & Bergin Solicitors has a particular interest in legal issues arising from the purchase and sale of artworks. We can advise on contractual and legal issues arising from art transactions and, where appropriate, work alongside art-market specialists, valuers, provenance researchers, tax advisers and lawyers in other jurisdictions.
Ownership and Title
A fundamental question when purchasing an artwork is whether the seller has the legal right to sell it.
An artwork may have passed through numerous owners, dealers, galleries and auction houses over many years. Problems can arise where there are gaps in that history or where an object has previously been stolen, unlawfully removed or made the subject of competing ownership claims.
Establishing the history of ownership can therefore be an important part of an art transaction, particularly for valuable or historically significant works.
Provenance
Provenance is the documented history of an artwork’s ownership and custody.
Good provenance can help establish the history and authenticity of an artwork. Conversely, gaps or inconsistencies in provenance can require further investigation.
Provenance has assumed particular importance in relation to artworks which may have been looted or subject to forced sale during the Nazi era, archaeological and cultural objects, and works originating in circumstances where their ownership or lawful export may be disputed.
Legal advice may need to be combined with specialist provenance and art-historical research.
Authenticity and Attribution
The identity of the artist can have an enormous effect on the value of an artwork.
Attribution is not always straightforward. Auction catalogues and art-market professionals may use descriptions such as “by”, “attributed to”, “studio of”, “circle of” or “follower of”, each of which can convey a different level of confidence about authorship.
Questions can arise where an artwork is subsequently reattributed, where experts disagree about its authorship or where a purchaser believes that an artwork was incorrectly described when it was sold.
Such disputes can involve the contractual terms of the sale, representations made by the seller and expert evidence concerning the artwork.
Contracts for the Sale of Art
The terms on which an artwork is bought or sold can be important, particularly for substantial transactions.
Depending upon the circumstances, an agreement may address matters including:
- the identity and description of the artwork;
- price and payment;
- representations concerning ownership and provenance;
- authenticity and attribution;
- delivery and risk;
- insurance;
- applicable law and jurisdiction; and
- what happens if a dispute subsequently arises.
The appropriate protections will depend upon the artwork, the parties and the nature of the transaction.
Copyright and Ownership of the Artwork
Buying an artwork does not necessarily mean acquiring the copyright in it.
The physical artwork and the intellectual property rights associated with the image are separate forms of property. An artist may therefore sell a painting while continuing to own copyright in the work.
This distinction can become important where the purchaser later wishes to reproduce the artwork in publications, merchandise, advertising or other material.
International Art Transactions
Artworks frequently cross borders.
International transactions can raise additional issues concerning export and import controls, cultural-property legislation, customs, taxation, provenance and the law applicable to the transaction.
Particular care may be required when dealing with archaeological objects, culturally significant objects or artworks whose ownership history crosses several jurisdictions.
Legal Advice on Art Transactions
Solicitor Ronan Bergin has a particular academic and professional interest in art law. He studied Fine Art Painting and Art History at the National College of Art and Design before completing a Master’s degree in Art, Business and Law at Queen Mary University of London.