Regulation and good practice
It is advisable to use artists engaged in a professional approach. This point can be attested in particular by the artist holding a SIRET number.
Who can claim the device? An artist is most often a self-employed worker. It comes under the social system of the artist authors, adapted within the general system. In this case, it declares its income as non-commercial profits.
It is advisable to check whether or not the sponsoring company is subject to the social contributions defined by article L382-4 of the Social Security Code. This contribution is 1.01% of the gross artistic remuneration. It is collected by the social security agency to which the artist belongs (Maison des artistes or AGESSA).
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Ownership of the work
When ordering or purchasing a work, the owner only acquires the «material support». Intangible property rights such as economic and moral rights belong to the author of the work (cf. articles L121-1 to L122-12 of the Intellectual Property Code).
The moral right of the artist is «perpetual, inalienable and imprescriptible». It is bound to the person of the author who cannot renounce it or yield it to others. Upon his death, this right persists for the benefit of his beneficiaries during the current calendar year and the following 70 years (cf. article L123-1 of the Intellectual Property Code).
Intellectual property: reproduction and representation rights
When purchasing or contracting for the selected work, the purchaser is strongly advised to negotiate with the artist the assignment, on a non-exclusive basis, of his economic rights of reproduction and representation, in accordance with the provisions of the Intellectual Property Code. In addition to the work ordered, the assignment may usefully include preparatory work for the elaboration of the work (plans, sketches, models, etc.) which are eligible for copyright protection. The assignment of each right must be explicit (assignment right, duration, geographical extent of the assignment and use).
However, it will be necessary to acquire only the rights strictly necessary for the reasonably foreseeable uses of the works ordered, for example in the context of an institutional communication. Each of the uses authorized by the author must be explicitly mentioned in the assignment contract. In the event that you consider using the work on a commercial basis (by-products for example), the contract with the artist must explicitly set out the conditions, including financial terms or refer to a subsequent amendment.
The architect also has a moral and economic right to the building he designed.
Preventive conservation and restoration of works
The preventive conservation and restoration of the works is the responsibility of the owner or the assignee in case of deposit of the work.
The moral right of the author includes in particular a right to authorship and a right to respect for the work which, if necessary, allows the author to oppose a modification of his work. The consequences are important: thus, to change the location of the work designed specifically for a site, you must first obtain the consent of the artist or his rights holders.
With regard to maintenance and maintenance, the owner who is responsible for it (on his credits) must also be vigilant to the nature of the measures taken. This is why it is strongly recommended that all the technical clauses concerning the future of the work and the questions of maintenance, restoration and possible removal should be included in a contract awarded at the time of ordering. These technical prescriptions developed by the artist help to avoid the degradation of the work.
In the case of a work likely to evolve, for example a signage or landscaping, the technical stipulations developed by the artist will ensure the sustainability of the work.
Finally, the parties may provide for the ephemeral nature of the work and its possible destruction or non-recovery in the event of normal wear and tear related to its material, which would therefore not constitute an infringement of the artist’s moral right. In this case, this must be indicated in the contract.
The implementation of a regular monitoring program and routine maintenance of the work as prescribed by the artist – indicated for example in a technical sheet – is recommended, because it avoids a major deterioration of the work leading to expensive restoration. For the proper functioning and conservation of the works, the owner may usefully consult structures with responsibility for art collections, in the proximity of the work.
As stated, the restoration must respect the moral right of the artist, who must be consulted before any intervention on his work. In addition, it is recalled that the restoration of a work must, with very rare exceptions, be entrusted to specialized restorers. It cannot be carried out by non-specialist technical services if the work is beyond the scope of routine technical maintenance (for example, replacing a bulb or plant).
The sale of the building, the sale of the work
- Case of the work that can be moved if the building is sold. If the work can be moved, it can be kept by its original owner.
- Where appropriate, the works have a «building by destination» character. They are therefore completely related to the building, and can be resold at the same time as the building.
When the assignment of a work is carried out by an art market professional, the resale right applies. The resale right is the remuneration from which the authors of original graphic and plastic works benefit when resale of their works during which a professional of the art market intervenes.
The resale right is inalienable, that is to say that it is linked to the person of the author, the author cannot assign it, give it, bequeath it (cf. articles L122-8 and articles R122-2 to 122-12 of the Code de la propriété intellectuelle.)
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