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Who owns the works of art? - Why the artistic property and sale of works of art for people with mental disabilities matters

In the framework of the subjects studied by the EASPD Interest Group on Arts, I would like to tackle the issues of artistic property and the sale of artworks in more depth, especially when they are created by persons with intellectual and psychosocial disabilities.

In some European countries, such as France, people under guardianship may be refused ownership of their art and copyright. For example, the principle of copyright protection is framed by Article L.111.1 of the Intellectual Property Code in France and states:

"The author of a mind work shall enjoy in this work, the mere fact of its creation, an exclusive immaterial property right enforceable for all"

Nothing else is required, in terms of capacity, intentionality or context.

This means that the creation of a work by a person who is protected by legal guardianship or not, whether with an intellectual disability or not, gives the author the exclusive ownership of copyright. This includes the framework of socio-educational activity.

Moral rights are inalienable, and the consent of their legal representative must be obtained for the reproduction, representation and exhibition of their artwork.

Concerning the sale, the professionals’ interest for these works must not overlook the authors as full owners of their property rights. The sale proceeds go to authors, based on sales contracts they are supposed to negotiate themselves or through their representatives with their intermediaries.

The interference of accompanying professionals on the production does not make them co-authors. Their presence in some cases, advice and therapeutic guidance in others, may not question the quality of the author himself.
In case of works sold by the authors or their representatives, health and social places in which these works are produced, may recover the cost of canvas and materials if they wish to.
 
Authors may assign their copyright, property rights or physical ownership of their work with the consent of their guardian or trustee.
 
This is why we have to refer to the spirit of the Convention on the Rights of Persons with Disabilities and be vigilant regarding any form of usurpation. We need to ensure as service providers that art facilitator’s actions are guided by the principles of non-discrimination and that they respect the artistic property. Service providers can refer to the European Ethical Charter, which has been written by a European research project named “Art for All” which I’ve had the honor to lead. Another reference is the intervention of association Eg’Art-Pour un égal accès à l’art , which guarantees the rights of artists with disabilities in the world.
 
Bernadette Grosyeux
EASPD Treasurer
President of Association Eg’Art – pour un égal accès à l’art