It is therefore important to distinguish between :
- Rights in a work; and
- The rights on the support of the work of art.
When an artist sells a work of art, he transfers the ownership of a movable property to another person, namely the buyer. If he actually disposes of the work (it leaves his estate), he retains his copyright on it. There is no implicit transfer of copyright when the work is sold. It is only when the artist makes, if necessary, an assignment or a license of his rights that these will be transferred to a third person who could then exploit them.
The owner of the copyright in the work can therefore be (and often will be) a different person from the owner of the property right in the object.
As far as NFTs are concerned, they are normally sold “NUS” or “NAKED” i.e. WITHOUT COPYRIGHT RELATING TO THE WORK SOLD (see below the analysis of OPENSEA’s general conditions).
The copyright remains with the creator/seller in good standing, or more rarely with the exchange platform.
The terms and conditions of trading platforms may also prohibit the buyer from commercial use of the purchased NFT, such as making identical copies or adaptations, selling derivative products or exhibiting it publicly,…
The creator of an NFT thus reserves an intangible value, distinct from the object sold, in addition to a percentage on the successive resales of the work (see below xxx – Resale right).
Buyers or Sellers of NFTs benefit from contractually specifying the rights of each. Does the Seller retain its copyright? Under what terms (duration, geographical extension, supports, adaptations,…)? As a reminder, for each mode of exploitation, the remuneration of the author, the extent and duration of the transfer must be expressly determined.
Art. XI.165. of Book XI of the Code of Economic Law: § 1. The author of a literary or artistic work shall have the sole right to reproduce it or to authorize its reproduction, in any manner and in any form, whether direct or indirect, temporary or permanent, in whole or in part.
This right includes the exclusive right to authorize adaptation or translation.
This right also includes the exclusive right to authorize the rental or lending of the material.
The author of a literary or artistic work has the sole right to communicate it to the public by any means, including making it available to the public in such a way that everyone may access it from a place and at a time individually chosen by him.
The author of a literary or artistic work has the sole right to authorize the distribution to the public, by sale or otherwise, of the original of his work or copies thereof.
The first sale or other transfer of ownership of the original or a copy of a literary or artistic work in the European Union by the author or with his consent exhausts the distribution right of that original or copy in the European Union.
§ 2. The author of a literary or artistic work has an inalienable moral right in it.
A blanket waiver of the future exercise of this right is void.
This includes the right to disclose the work.
Undisclosed works are exempt from seizure.
The author has the right to claim or deny authorship of the work.
He has the right to the respect of his work allowing him to oppose any modification of it.
Notwithstanding any waiver, he retains the right to object to any distortion, mutilation or other modification of such work or any other infringement of the same work, prejudicial to his honor or reputation.”
Therefore, we find ourselves in the antinomic situation where, on the one hand, the collector who buys the work exercises his rights on it, like any other owner, and, on the other hand, the artist continues to exploit his copyright on the work, even if it is no longer part of his heritage.
Conflicts between the physical owner (or electronic owner if we are talking about NFTs registered in the blockchain) of a work of art AND the owner of the copyrights related to these works are therefore frequent.
As a reminder, the economic rights conferred to the owner of the copyright include various rights described inarticle XI.165 du Code De droit Economique (CDE) :
(i) The right to reproduce, in any manner and in any form, whether direct or indirect, temporary or permanent, in whole or in part. The right of reproduction includes the mere presence of content on his computer. The right of adaptation and translation.
(ii) The right to rent and lend,
(iii) The right of distribution;
(iv) The right of communication to the public by any means, including making it available to the public in such a way that anyone may access it from a place and at a time individually chosen by them.
The author of a literary or artistic work also enjoys an inalienable moral right over it. The global renunciation to the future exercise of this right is null. This right includes the right to disclose the work.
The author has the right to claim or deny authorship of the work.
He has the right to the respect of his work allowing him to oppose any modification of it.
Notwithstanding any waiver, he/she retains the right to object to any distortion, mutilation or other modification of this work or to any other infringement of the same work, prejudicial to his/her honor or reputation.
