Original artwork, limited edition, artist's proof
- What is an original work?
- What is a unique piece?
- How many copies of an original work can be produced?
- What are the differences between limited edition, artist's proof and multiple edition?
- How many prints are allowed for an art photograph?
These terms, which are widely used in contemporary art, often cause great confusion, both among buyers and among some artists who wonder what they are entitled to do and what guarantees they can "affix" to their work.
In this article, which inaugurates the chapter dedicated to art market law , we will attempt to shed some light on these aspects, by clarifying some definitions.
We would like to 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 perfectly valid basis for other countries. However, it will be necessary to verify whether the laws and codes of other countries directly contradict them.
Legal definition of a work of art
According to Article 98A of the General Tax Code:
“II. – The following are considered works of art:
1° Paintings, collages and similar small paintings, paintings and drawings, entirely executed by hand by the artist, excluding architectural, engineering and other industrial, commercial, topographical or similar drawings, hand-decorated manufactured articles, painted canvases for theatre scenery, studio backgrounds or similar uses;
2° Original engravings, prints and lithographs produced 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 jewellery, goldsmithing and jewelry, original productions of statuary art or sculpture in all materials provided that the productions are executed entirely by the artist ; sculpture casts limited to eight copies and controlled by the artist or his heirs;
4° Tapestries and wall textiles made by hand , based on original cartoons supplied by the artists, provided that there are no more than eight copies of each of them;
Unique ceramic pieces signed by him;
6° Enamels on copper, entirely executed by hand, limited to eight numbered copies and bearing the signature of the artist or the art workshop, excluding articles of jewellery, goldsmithing and jewelry;
7. Photographs taken by the artist , printed by him or under his supervision, signed and numbered in a limited edition of thirty copies, in all formats and on all media.
Source: Article 98A of the General Tax Code
Note: In the case of multiple copies, the artist decides on the number of copies, within the maximum number defined by the tax code. A photographer may therefore 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 foundry members of the General Union of Foundrymen of France drafted the code of ethics for art foundries, which clarifies and extends the limit of eight copies indicated in the general tax code, with regard to art foundries:
“Any work of art obtained through the Foundry can be produced either as an “ORIGINAL,” as a “MULTIPLE,” or as a “UNIQUE PIECE.” This choice rests with the Artist. It must be determined before the creation of the first piece and is irrevocable.”
When produced under the designation "ORIGINAL," any artwork in cast metal alloy may, according to current regulations, be produced in a maximum of 12 copies, even if the composition or color of the alloy used is not the same for each of the 12 pieces. Among these originals, four, called "Artist's Proofs," must be numbered EA I/IV, EA II/IV, EA III/IV, EA IV/IV in Roman numerals; the other eight will be numbered 1/8, 2/8, etc., in Arabic numerals. Foundries are prohibited from using any other markings, including O, multiple O's, HC, etc. It is possible, however, to produce fewer than 12 originals, provided that this number is irrevocably determined 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 preclude the creation of the 4 artist's proofs. Once the quantity, predetermined by the artist, is reached, it cannot be exceeded under any circumstances
Regarding the term "MULTIPLE", this code specifies:
"In the case of printing a work 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 model made directly by the artist, it will be marked "PU" (Unique Piece) with the specification, where applicable, "Direct Wax". This particular work cannot be the subject of any artist's proofs or, obviously, multiples."
Link: Code of Ethics for Art Foundries
It should be noted that these texts are French and therefore applicable in France. If purchasing a work of art abroad, it is advisable to inquire about the applicable legislation in force in the country concerned.
Important! Regarding VAT, exceeding the limit on the number of copies specified in the tax code results in the loss of the reduced rate (5.5%). In principle, the full VAT rate must be applied to the entire series in question.
Series of art photographs exceeding 30
It is not uncommon to encounter photographic prints in editions of 50, or even 100 or more copies.
In our opinion, these prints do not meet the definition of original works of art and should not be presented as such. It seems to me that beyond the thirty copies stipulated by the tax code, a more appropriate term should be used, such as "limited edition artist's print." Regarding tax implications, the reduced rate does not apply. This is clearly a commercial product.
Some photographs are sometimes sold as "artist's proofs." The legality of this practice does not appear to be established, as the concept of an artist's proof logically applies only to art foundries. The opinion of a legal expert on this matter would be welcome.
In any case, we must not lose sight of the fact that too large a series 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 statement provides the buyer with an additional guarantee that there will be no further "original" prints.
Unique work or one-of-a-kind piece (PU):
This is the least ambiguous case. Works created entirely by the artist's hand, whether paintings or sculptures made by stone carving or clay modeling, for example, are, in fact, unique pieces.
But with regard to "reproducible" works, such as bronze casts or photographic prints, nothing prevents the artist from deciding that there will only be one proof.
In this case, it can be listed as a unique piece.
Authenticity:
There is no precise legal definition of the authenticity of a work of art. According to case law, the most important factor is the quality of the information provided by the seller, in order to determine whether the buyer had all the necessary information to make their purchase decision.
Regarding contemporary art, the issuance of a certificate of authenticity, signed by the artist, puts an end to any controversy about the authenticity of the work.
We strongly recommend that each work be accompanied by such a certificate.
The certificate of authenticity must state:
– The artist's name
– Professional registration numbers (Maison des Artistes, SIRET, SIREN, …)
– The title
– The dimensions
– The technique and materials used
– The support
– The year of creation
– The print run number in the case of a series (example: artwork No. 2 in a series of 8 copies)
– A photo of the artwork
– The date the certificate was issued
– If applicable, a statement indicating that the master file or mold has been destroyed
– The artist's signature
A certificate of authenticity may be subject to specific protection (watermark, security code, seal, electronic certificate, etc.).
Original work: how many copies?
As previously seen, a unique work entirely created by the artist's hand is, in fact, an original work.
But the question arises when it comes to, for example, bronze castings or photographic prints.
Here again, it will be necessary to refer to the limits on the number of copies set out in Article 98 A of the General Tax Code. As long as these limits are respected, it is perfectly legal to use the phrase "original work," to which must be added the edition number and the number of copies produced (or planned) by the artist.
Special case 1: Transformative works
A work of art does not come from nothing. It is generally inspired by the culture in which the artist lives, and this culture is partly made up of pre-existing works.
But nowadays, so-called "transformative" works, which often combine images, sounds, videos and machinery, are taking up an increasingly large place in the art market.
The two major transformative trends of mashup (combining several works) and remix (modifying a work to "create" a new one) raise many other questions, particularly about intellectual property, especially since digital tools now allow for virtually infinite possibilities of manipulating works.
According to intellectual property rules, "the author of the second work must seek permission from the author or rights holder of the first work, otherwise they are considered an infringer."
However, obtaining these permits is often too complex and therefore raises many 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: The protection of digital works
Protecting digital works presents a difficult problem to solve. Indeed, technically, a digital file can be reproduced infinitely without any degradation in quality.
Currently, there are few viable solutions for the protection of these works.
Encryption, or file encryption, allows you to add a signature to a file, as well as certain limitations, such as prohibiting private copying or printing. This solution may seem ideal at first glance.
Encryption is often used primarily for the file download process. The goal is to ensure that only the intended recipient can decrypt it.
Let's take the example of buying a digital photo from a sales website:
The internet user chooses the work they like and makes their payment.
He then has the option to download the photo file immediately.
The download is secured by the website's "https" protocol (which relies on a digital certificate) to prevent third parties from intercepting the file. The https protocol encrypts the file during transmission, similar to secure online payments.
Once the photo file is downloaded, the buyer can open the file and perform all operations on it.
To protect their work, artists can choose to encrypt their files directly. This provides an additional layer of protection. Even after downloading, or in the event of a website hack, it is impossible to view the image without the decryption key. This key can, for example, be sent to the recipient via SMS or email.
With this key or code, the buyer can finally unlock their file.
From that moment on, if it is an encryption without additional protection, the buyer is able to do whatever he wants with his file: print it, copy it, possibly modify it and distribute it.
To remedy this, various methods are possible, such as a specialized digital frame that accompanies the work and contains the decryption key.
Only this equipment is then able to view the photo.
This mechanism is complex, especially in the event of a breakdown or equipment replacement. The manufacturer must then be able to obtain the certificate of origin in order to re-inject it into the device.
However, this solution has major drawbacks:
- The purchase of the digital frame may seem "forced"
- The inability to use other reading media creates a monopoly situation for the manufacturer.
Watermarking allows an image to be marked visibly by adding a signature or logo, or invisibly to the naked eye by modifying insignificant pixels. This method does not prevent copying. However, it proves invaluable in the event of a dispute, particularly invisible watermarking, which allows for the authentication of an original.
The mechanisms for protecting rights in digital content are called DRM, for Data Rights Management.
NFTs (Non-Fungible Tokens)
What is an NFT?
NFTs operate on blockchain technology, the same technology used by cryptocurrencies.
Issuing certificates based on NFTs is very promising.
NFTs are "non-fungible," meaning they are not interchangeable. This is the key difference with cryptocurrencies. By comparison, a coin or a banknote is fungible, as a one-euro coin can be exchanged for another one-euro coin (with the exception of collector coins, which are a special case).
NFT technology, within the blockchain, guarantees uniqueness. It is therefore particularly well-suited to works of art, and even more so to digital art.
How to buy an NFT?
To buy an NFT, you generally need to log on to a specialized platform, or marketplace, and then create a wallet, also called a "wallet".
The currency generally used for the transaction is ethereum, although some platforms allow purchases in bitcoin, or in regular money, via PayPal or credit card.
NFTs in the art market
Tech enthusiasts, passionate about crypto and everything 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, NFT offers an undeniable advantage: with each resale on the secondary market, for example at an auction, the artist receives a commission. In the long run, this could constitute a recurring income.
However, we must keep a cool head. Many NFTs remain unsold and will likely remain so forever.
NFT technology is still recent 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.
Moreover, when an enthusiast decides to buy an NFT, they are not buying the artwork, but the NFT, that is, a reproduction of the artwork, 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 act into the NFT, which is perfectly feasible.
We are closely monitoring the maturity of this technology, as well as its legal aspects.
We will keep you informed and will certainly write an article entirely dedicated to this subject.
In the meantime, we advise you to keep and carefully preserve proof of authorship of your works, and in particular of your photographs and digital works.