Original work, limited series, artist proof

What is an original work?
What is a unique piece?
How many copies can an original work be produced?
What are the differences between limited edition, artist proof and multiple edition?
What number of prints are allowed for an art photograph?

On these terms, widely used in contemporary art, there is often great confusion, both among buyers and among certain artists who wonder what they have the right to do and what guarantees they can “affix” to their work.

In this article, which opens the chapter dedicated to art market law , we will try to see a little more clearly on these aspects, by specifying some definitions.

We inform the reader that this article is based in particular on the definitions given by the French tax code, as well as on the code of ethics of art foundries, also French.

These definitions remain a completely valid basis for other countries. It will nevertheless be necessary to check whether the laws and codes of other countries do not come into direct contradiction.

Legal definition of a work of art

According to article 98A of the general tax code:

“II. – The following creations are considered works of art:

1° Pictures, collages and similar chalkboards, paintings and drawings, entirely executed by hand by the artist, excluding architectural, engineering and other industrial, commercial, topographical or similar drawings, manufactured articles hand decorated, painted canvases for theater sets, workshop backgrounds or similar uses;

2° Original engravings, prints and lithographs printed in limited numbers directly in black or in color, from one or more plates entirely executed by hand by the artist, whatever the technique or material used, with the exception of any mechanical or photomechanical process ;

3° Excluding articles of jewelry, goldsmithing and jewelry, original productions of statuary art or sculpture in all materials as long as the productions are executed entirely by the artist ; sculpture fonts limited to eight copies and controlled by the artist or his beneficiaries;

4° Hand-made , based on original cartoons provided by the artists, provided that no more than eight copies of each of them exist;

5° Unique of ceramics, entirely executed by the artist and signed by him;

6° Enamels on copper, entirely executed by hand, within the limit of eight numbered copies and bearing the signature of the artist or art studio, excluding items of jewelry, goldsmithing and jewelry;

7° Photographs taken by the artist , printed by him or under his control, signed and numbered within the limit of thirty copies, all formats and supports combined. »

source: Article 98A of the general tax code

Note: in the case of multiple copies, the artist decides the number of copies, within the limit of the maximum number defined by the tax code. A photographer can thus decide to make a single print or to sign only three copies, numbered from 1 to 3.

Code of ethics for art foundries

In 1993, art foundries members of the Syndicat Général des Fondeurs de France drafted the code of ethics for art foundries, which specifies and extends the limit of eight copies indicated in the general tax code, with regard to the art foundry. 'art:

“Any work of art obtained by Fonderie can be produced: either under the name “ORIGINAL”, or under that of “MULTIPLE”, or under that of “UNIQUE PIECE”. This choice depends on the Artist. It must be determined before the first piece is produced and is irrevocable. »…

“When produced under the name “ORIGINAL”, any work of art in molten metal alloy can only be produced, according to current regulations, in a maximum number of 12 copies, even if the composition or the color of the alloy used are not the same for each of the 12 pieces. Among these originals, four, called “Artist Proofs”, must be numbered EA I/IV, EA II/IV, EA III/IV, EA IV/IV in Roman numerals, the other 8 will be numbered 1/8, 2 /8 etc. in Arabic numerals. The founders prohibit any other marking and in particular O, several O, HC, etc. However, it is possible to produce a number of originals less than 12, the choice of this number having to be determined, irrevocably, by the artist, before the first casting. The limitation on the number of original proofs only affects the 8 works numbered in Arabic numerals and does not exclude the creation of the 4 artist proofs. When the quantity, predetermined by the artist, is reached, it cannot under any circumstances be exceeded. »…

Concerning the name “MULTIPLE” this code specifies:

“If a work is printed in the form of “multiples”, there are neither originals nor artist’s proofs.

And finally, regarding a UNIQUE PIECE:

“When a work has been cast in a single copy, for example from a wax directly made by the artist, it will be marked “PU” (Unique Piece) with the precision, if applicable, “Direct wax”. This particular work cannot be the subject of any artist's proof or obviously multiples. »

link: code of ethics of art foundries

It should be noted that these texts are French and therefore applicable in France. If purchasing a work of art abroad, you should inform yourself about the applicable legislation in force in the country concerned.

Attention! Regarding the application of VAT, exceeding the limit of the number of copies indicated in the tax code loses the right to the application of the reduced rate (5.5%). In principle, the full VAT rate must be applied to the entire series concerned.

Series of art photographs greater than 30

It is not uncommon to come across photographic prints of 50, even 100 or more copies.

These prints do not, in our opinion, meet the definition of original work of art, and should not be presented as such. It seems to me that beyond the thirty copies provided for by the tax code, we should use a more appropriate term, such as “limited series artist's copy”. Concerning tax aspects, the reduced rate does not apply. This is indeed a commercial product.

Some photographs are sometimes sold under the name artist's proof. The legality of this practice does not seem to us to be established, the notion of artist's proof logically only applying to the art foundry. The opinion of a lawyer on this subject would be welcome.

In any case, we must not lose sight of the fact that a series that is too large has the consequence of devaluing the works.

In practice, the certificate of authenticity may contain a statement specifying that the high definition digital file or "master" has been destroyed by the artist. This mention is an additional guarantee for the buyer that there will be no additional “original” prints.

Unique work or unique piece (PU):

This is the least ambiguous case. Works produced entirely by the hand of the artist, whether painting, or sculptures made by stone cutting or clay modeling for example, are, in fact, unique pieces.

But regarding “reproducible” works, such as bronze casts or photographic prints, nothing prevents the artist from deciding that there will be only one print.

In this case, it may be mentioned as a unique piece.

Authenticity:

In law, there is no precise definition of the authenticity of a work. According to case law, it should be considered that the most important thing is the quality of the information provided by the seller, in order to determine whether the buyer had all the elements necessary for his purchasing decision.

Concerning contemporary art, the issuance of a certificate of authenticity, signed by the hand of the artist, helps put an end to any controversy over the authenticity of the work.

We strongly recommend accompanying each work with such a certificate.

The certificate of authenticity must mention:

– The name of the artist

– Professional numbers (Maison des Artistes, SIRET, SIREN, etc.)

- The title

- The dimensions

– The technique and materials used

- The support

– Year of creation

– The edition number in the case of a series (example: work No. 2 in a series of 8 copies)

– A photo of the work

– The date of issue of the certificate

– If applicable, a statement declaring that the master file or the mold has been destroyed

– The artist’s signature

A certificate of authenticity may possibly be subject to specific protection (watermark, secure code, seal, electronic certificate, etc.).

Original work: how many copies?

As seen previously, a unique work entirely created by the hand of the artist is in fact an original work.

But the question arises when it concerns, for example, casts of bronze pieces or even photographic prints.

Here, again, it will be appropriate to refer to the limits on the number of copies set out in Article 98 A of the General Tax Code. As long as we remain within these limits, it is completely legal to affix the words “original work” to which must be added the number of the print run and the number of copies produced (or planned) by the artist.

Special case 1: transformative works

A work of art is not born out of nothing. It is generally inspired by the culture in which the artist operates, and this culture is partly constituted by pre-existing works.

But nowadays, so-called “transformative” works, which often combine images, sounds, videos and machinery, are taking an increasingly large place on the art market.

The two major transformative trends which are the mashup (uniting of several works) and the remix (modification of a work to “create” a new one) raise many other questions, in particular on intellectual property, especially as digital tools today allow virtually infinite possibilities for manipulating works.

According to the rules of intellectual property, “the author of the second work must request authorization from the author or the rights holder of the first work, failing which he is considered an infringer. »

But obtaining these authorizations is often too complex and poses numerous legal questions.

If you wish to delve deeper into this particular subject of transformative works, we recommend reading this article from Journal Du Net .

Special case 2: Protection of digital works

The protection of digital works poses a difficult problem to resolve. Indeed, technically a digital file is infinitely reproducible without degradation of quality.

At present, there are few viable solutions for the protection of these works.

Encryption, or encryption of a file, allows a signature to be added, as well as certain limitations, such as the prohibition of private copying or printing. This solution may seem ideal at first glance.

Often, encryption is used primarily for the file download operation. The aim is to ensure that only the recipient will be able to decipher it.

Let's take the example of purchasing a digital photo on a sales site:

The Internet user chooses the work they like and makes their payment.

He then has the option to immediately download the photo file.

The download is secured by the site's "https" protocol (which is based on an electronic certificate) to prevent a third party from intercepting the file. The https protocol consists of encryption during file transport, similar to secure payments on the internet.

Once the photo file is downloaded, the buyer can open the file and perform any operations on it.

To protect his work, the artist can decide to directly encrypt his file. This is additional protection. Even after downloading it, or in case of hacking of the website, it is impossible to view the image without the decryption key. The latter can for example be sent by SMS or e-mail to the recipient.

With this key or code, the buyer can finally unlock their file.

From this moment, if it is an encryption without additional protection, the buyer is able to do what he wants with his file: print it, copy it, possibly modify it and distribute it. .

To remedy this, different methods are possible, such as a specialized digital frame which accompanies the work and which contains the decryption key.

Only this equipment is then able to view the photo.

This mechanism is complex, particularly in the event of equipment breakdown or replacement. The manufacturer must then be able to have the certificate of origin to reinject it into the device.

This solution nevertheless has major disadvantages:

purchasing the digital frame may seem “forced”
the impossibility of using other reading media creates a monopoly situation for the manufacturer.

Watermarking allows you to mark an image visibly by affixing a signature or a logo, or invisibly to the naked eye, by modifying non-significant pixels. This method cannot prohibit copying. On the other hand, it is very useful in the event of a dispute, particularly for invisible watermarking which allows an original to be authenticated.

The mechanisms for protecting rights in digital content are called DRM for Data Rights Management.

NFTs (Non Fungible Token)

What is an NFT?

NFTs work on blockchain technology, the technology used by cryptocurrencies.

The issuance of certificates based on NFTs is very promising.

NFTs are “non-fungible”, meaning they are not interchangeable.
This is the big difference with cryptocurrencies. For comparison, 1 coin or a currency note are fungible, because a 1 euro coin can be exchanged for another 1 euro coin (except for collectors' coins, which are a special case). NFT technology, within the blockchain, guarantees uniqueness.

It is therefore particularly suitable for works of art, and even more so for digital art.

How to buy an NFT?

To buy an NFT, you generally have to connect to a specialized platform, or marketplace, then create a wallet, also called a “wallet”.

The currency generally used for the transaction is ethereum, although some platforms allow you to purchase in bitcoin, or in regular money, via PayPal or credit card.

NFTs on the art market

Technophiles, passionate about crypto and everything related to digital, are full of praise for this technology.

Some works have already sold for prices reaching several million dollars.

We're going for Matt Hall and John Watkinson's Crypto Punks.

For the artist, the NFT brings an undeniable advantage: with each resale on the secondary market, for example during an auction, the artist must receive a commission. Ultimately, this could constitute recurring income.

However, you have to keep a cool head. Many NFTs remain unsold and will likely remain so forever.

NFT technology is still new and many questions remain.

For example, this method does not guarantee the authenticity of the physical artwork associated with the NFT, nor that it was actually created by the alleged artist.

In addition, when an amateur decides to buy an NFT, he does not buy the work, but the NFT, that is to say a reproduction of the work, within the blockchain.

To obtain more rights and guarantees, it will be necessary either to go through platforms that take these issues into account, such as SuperRare , or to integrate a bailiff's deed into the NFT, which is perfectly feasible.

We are closely monitoring the state of maturity of this technology, as well as its legal aspects.

We will be sure to keep you informed and we will certainly write an article entirely dedicated to this subject.

In the meantime, we advise you to hold and carefully preserve proof of the authorship of your works, and in particular of your photographs and digital works.

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