It it legal to sell scenery?

'Is it legal', 'can I do this' type questions and discussions.
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chris101
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It it legal to sell scenery?

Post by chris101 » Sun Nov 26, 2017 8:34 am

I belong to a drama group and I got my daughter to paint some scenery (8x16 feet) for a production.
It was so admired that a person wanted to keep it for use by the community.
The chairman wants to sell my daughter's work of art for £400 to this person without asking for my daughter's permission.
Is this legally allowed?
Incidental she would be happy for the work to be given to the community but does not want her work sold, especially for a profit for this group which is meant to be community minded!
The canvas and paint was brought by the drama group. The week's work was given freely. She is not a member of the group.
Thank you

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AndyJ
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Re: It it legal to sell scenery?

Post by AndyJ » Sun Nov 26, 2017 10:01 am

Hi Chris,

First of all, it is settled law that the painted scenery is subject to copyright, as an artistic work. And in the absence of any employment contract your daughter would be the owner of the copyright because it was her creativity which went into the making of the work. Ownership of the materials is not relevant to the issue of ownership of the copyright. However the next step is more difficult. Any physical work of art can be freely owned and traded without affecting the copyright status, and so the issue revolves around the ownership of the physical scenery itself. And that becomes a matter of contract. What did the parties understand they were agreeing to at the time the agreement was made?

Clearly, if your daughter had sold her work to the drama group they would have the absolute right to sell it without involving your daughter. This is known as the doctrine of exhaustion of rights (or in the USA, the first sale doctrine). However she didn't sell the work, but she did provide her creative effort on the understanding that it was for the use of the drama group, and so if they had decided to keep it for use in a future production, I don't think this would have conflicted with her presumption when first agreeing to do the work. If it could be shown that the work had not been given to the group, then any disposal of it, such as by sale, would be an act of conversion. The question is, did she give the work to the group, or merely lend it with a sort of licence in place which just allowed the drama group to use her copyright work? Here, ownership of the materials used to make the scenery may be a relevant factor as it indicates that, but for their having been provided, the work would not have come into existence. The materials will have remained the property of the group throughout. And as you say, her "work was given freely". You say that she would prefer that the work was given to the community, but indirectly would the community not also benefit if the work was sold, and the proceeds returned to the group in order to help put on future productions for the benefit of the community?

It is not for me to say which outcome is right, but on balance I think a fair-minded person might take the view that the group does have the right to regard the scenery as their property, and thus has a right to sell it if that is thought to be in the best interests of the group.

Perhaps the issue could be resolved by asking a local person such as a community leader with no affiliation either to your family or the drama group, to arbitrate. I really hope things can be resolved amicably.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

chris101
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Re: It it legal to sell scenery?

Post by chris101 » Wed Nov 29, 2017 10:29 am

Many thanks Andy
Isn't life complex!
Chris

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