Auction House Gallery Contracts

Queries for museum-l and caah readers:

Is it a standard feature of auction house and art gallery contracts with sellers and artists to reserve the right (whenever possible) to use illustrations of works in catalogues and advertising to promote their sale, and, later, after the sale, to promote the auction house and gallery?

If a work is being sold by someone who does not own the right to reproduce the work, is there any provision in law or custom that permits the reproduction of the work for purposes of sale without the permission of the copyright owner? For example, if I were to offer my Picasso for sale (this is hypothetical, remember) could the Picasso heirs refuse permission to allow the work to be illustrated in advertisements and sales catalogues?

(This is a topic that came up on the cni-copyright list.)

Thank you for your responses.

Robert A. Baron

(I'm cross posting this note to CAAH and MUSEUM-L; please excuse any

Mr. Baron,

I am no expert . . . but I'm learning. My sense of the situation that you describe leads me to recite the copyright query mantra: 'it depends.'

I do not believe that publicity for an auction falls into the Fair Use clause, nor any other loophole. It all depends on the agreement that the dealer and the artist reach.

A contract (license of copyright) should be put together that states what is allowed to be copied, for what purposes, and for how long. As I understand it, without such an agreement, the owner of the Picasso could refuse to allow you to copy and publish photographs of the painting altogether. They own copyright to the work, after all (or, at least, I am assuming so much).

Best wishes,

William Scott