Can I claim I painted something with the real artists permission

[S2h2013]

Strange one, but I was asked by an artist if I could claim that I painted one of their pieces.

If the picture is sold there is an agreement in place regarding any monies but am I at risk if I am portrayed as the artist even though I am not, and does it make any difference that I have their permission?

Thanks

[AndyJ]

Hi S2h2013,

As you say, rather a strange request. There are two separate aspects to this: copyright and the possibility of fraud. Let's look at copyright (and moral rights) first as they are somewhat simpler. In theory there is nothing to stop you claiming copyright in a piece, especially if you have the permission of the actual artist. The only other aspect which may be relevant is the moral right known as the paternity right (see section 77 of the Copyright Designs and Patents Act 1988) and the corresponding moral right for a work not to be falsely attributed to an author or artist (section 84). However, neither of these really apply here, because the right to be credited as the author of the work belongs to the author alone, and presumably, he is renouncing it. And section 84 is intended to protect you from a third party (or indeed the original artist) from falsely claiming that you are the artist, and so if you have no intention of bringing a claim, it won't have any effect! Obviously this provision is there to cover cases where a forger is selling paintings etc which he attributes to a more famous artist, such as a street artist claiming his mural is a Banksy.

However your question was not about claiming ownership of the copyright. By saying you were the actual artist you might be perpetrating a fraud, if someone acquires the piece on the basis that it is your work. For example if your name on a painting meant that the work would be more valuable than if the real artist's name was on it, then it is possible that a buyer or client could claim they were charged more for the piece than it would have been the case if the identity of the real artist had been known. However if there is no real financial aspect to the deal, it would be harder to sustain a claim of fraud. Fraud can be either a civil or criminal matter, depending largely on the seriousness of the alleged activity.

So I think you need to examine the motive behind this request. If it is in order to deceive someone and there is a financial implication to the deception (ie it would be dishonest), then you could be involved in a criminal conspiracy to defraud.

Section 12(1) of the Criminal Justice Act 1987 provides that:

If -

(a) a person agrees with any other person or persons that a course of conduct shall be pursued; and
(b) that course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions,

the fact that it will do so shall not preclude a charge of conspiracy to defraud being brought against any of them in respect of the agreement.

and

Section 2 of the Fraud Act 2006:
2 Fraud by false representation

(1) A person is in breach of this section if he—

• (a) dishonestly makes a false representation, and
  
  (b) intends, by making the representation—
  
  • (i) to make a gain for himself or another, or
    
    (ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

• (a) it is untrue or misleading, and
  
  (b) the person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

• (a) the person making the representation, or
  
  (b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

[S2h2013]

Thanks for the reply. Wouldn’t this count as ghost writing so wouldn’t be classed as fraud if any of them were sold?

[AndyJ]

Hi S2h2013,

As I said, it would depend on the financial consequences of the purpose of this 'ruse'. If the purpose was similar to that of a ghost writer, ie you can't paint, but would like people to think you can, then that appears to be relatively harmless. But the way you explained this, the artist approached you, so that is the opposite of a ghost writer. By and large there is an acceptance that some so-called auto-biographies are ghost written, but I am not aware of a genre in which an autobiography is portrayed as a biography, which is analogous to the situation you have described.

Obviously this forum is all about copyright and so it is not appropriate to get into the intricacies of what can constitute fraud, especially as, potentially, fraud can be a criminal offence with some very serious consequences.

All I can suggest is that if you have any doubts about getting involved in this, you should make sure you understand the full extent of what is going on and the level of dishonesty (if any) which may be involved. As I have said, there are no issues over the copyright aspect which you need to worry about.