Art law in Colombia is an interdisciplinary field that involves intellectual property, cultural heritage, commercial and tax regulations. It is regulated by various entities: the Ministry of Culture, the Superintendency of Industry and Commerce, the National Tax and Customs Directorate and the National Police, among others, which ensure the protection of heritage and compliance with the rules in the art market.

Relevant Standards

Intellectual property and copyright

• Law 23 of 1982: regulates copyright and related rights in Colombia.
• Andean Decision 351 of 1993: a supranational norm that establishes the common copyright regime in the Andean Community.
• Law 1915 of 2018: introduces amendments to copyright, including limitations and exceptions.
• Law 44 of 1993: establishes the regime of economic and moral rights over artistic and literary works.

Protection of cultural heritage and regulation of the art market

• Law 1185 of 2008: amends the General Culture Law (Law 397 of 1997) and strengthens the protection of the Nation’s Cultural Heritage, including movable and immovable property of cultural interest.
• Decree 763 of 2009: regulates the declaration, registration and administration of properties of cultural interest.
• Law 1675 of 2013: regulates the protection, conservation and recovery of submerged cultural heritage.
• Law 1304 of 2009: approves the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

Authorities

The protection of cultural heritage and regulation of art is mainly the responsibility of the Ministry of Culture. It is the governing body in matters of cultural policy and protection of the artistic heritage. However, the following entities are also involved.

• Colombian Institute of Anthropology and History (ICANH, by its initials in Spanish): oversees the protection and administration of archaeological and cultural heritage.
• National Council of Cultural Heritage: evaluates the inclusion of properties in the list of properties of cultural interest (BIC, by its initials in Spanish) and supervises their management.
• Superintendence of Industry and Commerce: responsible for the protection of copyrights and intellectual property.

In market regulatory affairs and oversight, there are the following two main entities.

• National Tax and Customs Directorate (DIAN, by its initials in Spanish): controls the import, export and taxation of works of art.
• Interpol and National Police: responsible for the prevention and control of illicit trafficking in cultural property.

The main rights of an artist related to their works are set out below.

Moral Rights

They are inalienable, non-waivable and imprescriptible rights, which means that the artist always retains them, regardless of who the owner of the work is. These rights grant:

• the right of the artist to be recognised as the author of their work and to demand that their name be associated with it;
• the right to object to any distortion, modification or use of their work that damages their reputation or distorts their artistic intent;
• the power to decide when and how your work will be presented to the public; and
• the power to be able to make changes or withdraw the work from the market, although in some cases it must compensate affected third parties.

Property Rights

These rights allow the artist to economically exploit their work and can be assigned, licensed or transferred. They last for the life of the author plus 80 years and then pass into the public domain. These rights grant:

• the right to reproduce the work in any format;
• regulation of the sale, rental or any other form of distribution to the public;
• the power to control the exhibition or diffusion of the work in media such as museums, galleries, television or internet; and
• authorisation or prohibition to create derivative works, such as adaptations or modifications.

“Droit de suite”

According to normative regulations adapted to the national context, artists are entitled to receive a percentage of the resale price of their work at auctions or public sales, ensuring that they benefit from the increasing value of their work on the market.

Protection and Management of Artists’ Rights

To protect their rights, artists may register their works with the National Copyright Directorate (DNDA, by its initials in Spanish), the entity in charge of designing, administering and executing government policies on copyright and related rights. Its work includes strengthening the protection of the holders of these rights and promoting a culture of respect for literary and artistic works.

Its functions include the development of national copyright regulations, accession to international conventions and participation in bilateral and multilateral trade negotiations.

It also administers the National Copyright Registry, where literary and artistic works are registered, as well as the acts and contracts related to their transfer, providing legal certainty to their owners.

In Colombia, copyright protection for collective and collaborative works depends on the way they were created and the agreements between their authors. The current and applicable regulations establish different treatments for each case, defining the rights and responsibilities of those who participate in their creation.

Collaborative Works (Co-Authorship)

Collaborative works are born from the joint effort of two or more authors who work with the intention of merging their contributions into a unique and indivisible creation, such as a painting done as a team or a sculpture made by several artists.

In these cases, all creators share ownership of moral and economic rights, unless they have agreed otherwise. This means that any use or exploitation of the work requires the consent of all co-authors, unless otherwise agreed.

In addition, this type of work is protected for the lifetime of the last co-author to die, plus 80 years, thus guaranteeing its safekeeping overtime.

An iconic case of collaborative work is the Mount Rushmore sculpture in the United States. Although the design was by Gutzon Borglum, its execution required the work of more than 400 sculptors and carvers.

Collective Works

Collective work is the result of the work of several people whose individual contributions merge into a single, inseparable creation. Unlike other forms of authorship, these works are published under the direction and name of a natural or legal person, who acts as organiser.

An urban mural funded by an institution or an exhibition curated by a museum are collective works, as they bring together contributions from different artists under a joint vision. “The History of Mexico” by Diego Rivera, located in the National Palace in Mexico City is a clear example. Although Rivera was the principal artist, the project was commissioned and financed by the Mexican government, and its execution involved several assistants and collaborators.

In this case, the economic rights belong to the person who organised, financed or directed the work, unless otherwise agreed. However, moral rights remain individual to each artist, which allows them to demand recognition for their contribution and to oppose modifications that alter its integrity.

Derivative Works and Adaptations

If a collaborative or collective work is modified or used for the creation of new versions (for example, a sculpture that becomes part of a multimedia installation), the authorisation of the holders of the economic rights is required, unless the rights have been expressly assigned.

Registration and Legal Protection

Considering that in Colombia, the agreement between the parties on the copyright of this type of work is valid, to avoid conflicts, it is recommended that the parties involved in the work:

• register the work with the DNDA, specifying its collective or collaborative nature; and
• sign clear prior agreements, establishing the distribution of rights and the conditions of use and exploitation.

In Colombia, the difference between a collaborative work and a collective work is not only a creative issue, but also one of ownership and control. While in collaborative works the co-authors share joint ownership, in collective works, the economic rights usually belong to the person who organises or finances the work.

To avoid conflicts and ensure fair management of the work, the ideal is to establish clear agreements from the outset, defining how the work will be exploited and what rights each author will retain. A good agreement can make the difference between a harmonious collaboration and a legal dispute in the future.

In Colombia, infringing copyright on a work of art is not a minor matter: it can result in fines, administrative sanctions and even imprisonment.

To avoid legal problems, it is necessary to obtain prior authorisation, respect licences and ensure that any use of the work is within the legal framework. This not only protects the creator but also fosters an environment of respect and recognition for art and creativity. Otherwise, infringers face the following penalties and sanctions.

Civil Penalties

The author or copyright holder may initiate a lawsuit before ordinary jurisdiction in civil matters to make a claim for:

• compensation for damages to receive financial compensation for the damage suffered;
• immediate cessation of unauthorised use of the work; and
• the seizure and destruction of illegal copies in cases of unauthorised reproduction.

Administrative Sanctions

The National Directorate of Copyrights and the Superintendence of Industry and Commerce may impose sanctions to those who infringe copyrights.

Criminal Penalties

The Colombian Criminal Code establishes severe penalties for those who infringe copyright, especially in cases of unauthorised reproduction, distribution or commercialisation of works of art.

In addition to its own legislation, Colombia is committed to copyright protection at the global level. As a signatory to international treaties such as the Berne Convention, the WIPO Copyright Treaty and the Cartagena Agreement, the country must guarantee standards of protection that go beyond national borders.

This means that an infringement may not only generate sanctions at the national level, but also claims at the international level, increasing the legal consequences for those who violate the rights of authors.

The registration of a work of art in Colombia is a voluntary procedure that provides legal certainty on the ownership of copyrights. Although copyright arises automatically with the creation of the work, registration is recommended to prove authorship in case of legal disputes.

This registration is made before the DNDA, an entity attached to the Ministry of the Interior.

Benefits of Registration

The registration of a work is a key and indispensable tool to protect the author’s rights and ensure their recognition. In the case of plagiarism or unauthorised use, registration acts as a legal proof that facilitates the defence of rights. In Colombia, there is no general exception allowing the reproduction of artworks in public spaces without authorisation. This legal gap creates uncertainty, as copyright protection may still apply, requiring permission from the rights holder. To avoid potential claims, it is advisable to act cautiously and obtain authorisation when possible

It also simplifies the management of economic rights, making it possible to grant licences or assign rights in a secure and legal manner. As an added value, thanks to treaties such as the Berne Convention, registration can also serve as evidence of authorship in other countries, providing broader protection at the international level.

The registration of a work of art in Colombia is a simple and free procedure that provides greater legal protection to the author and facilitates the defence of their rights in case of conflicts. Although it is not mandatory, it is highly recommended to support the ownership and ensure better control over the exploitation of the work.

Droit de suite, or resale royalty on the resale of works of art, originated in France as a mechanism for artists and their heirs to benefit from the increase in value of their creations over time. The idea behind this figure is simple: when a work is resold at a public auction or through an art dealer, the artist receives a percentage of the sale price. In this way, the artist not only obtains compensation for the first sale of their work but also continues to participate in its appreciation in the market.

This right has been adopted in several legislations around the world. However, in Colombia, even though the Andean Decision 351 of 1993 mentions the possibility of implementing it, to date no internal regulation has been developed that would allow its automatic and mandatory application.

This regulation establishes that the authors of works of art and, in their absence, their heirs, have the inalienable right to receive a percentage of the resale price of their works when they are sold at public auctions or through art dealers. However, it leaves the decision to regulate it in the hands of each country, which in the case of Colombia has not yet occurred.

Consequently, in practice, Colombian artists do not have a legally enforceable right to receive compensation for the resale of their works, therefore, in Colombia, its recognition depends exclusively on the will and agreement of the parties involved in the transaction.

That is why, although the country does not have a specific regulation on droit de suite, it does not mean that artists are completely unprotected, since to guarantee their participation in the revaluation of their works, it is advisable that this is regularised in contractual agreements.

An artist may include in their sales contracts clauses that expressly state their right to receive a percentage of future sales of their work. This implies that, before closing a transaction with a buyer or an intermediary, the artist may negotiate and put in writing their participation in eventual resales.

Although this option depends on the acceptance of the other party, in the international art market it is already common for gallery owners and collectors to recognise this right, so including these clauses could become a more frequent practice in Colombia.

The lack of regulation in Colombia leaves artists in a vulnerable position. Therefore, until the country adopts clear regulations on the subject, the best strategy is for artists to anticipate and protect their interests through clear contractual agreements adapted to this type of practice.

Considering that works of art are protected by copyright, their reproduction, distribution or any other use of their image requires the authorisation of the holder of the economic rights. This means that it is not enough that the work is visible in a public space or that its image is available on the internet, without proper permission, its use may constitute the commission of an illegal act.

Colombian regulations only allow specific exceptions, such as use for pedagogical purposes within higher education institutions. However, unlike other countries where there are more flexible regulations on the reproduction of works located in public spaces, in Colombia there is no rule authorising their free use. This means that even if a sculpture or mural is located in a square or on a public road, its image is still protected and its use without authorisation may generate legal conflicts.

Obtaining Authorisation From the Rights Holder

To legally use an image of a protected work, permission or a licence must be obtained from the rights holder, who may be the artist if they are still alive or the heirs or successors, if the work is still protected (economic rights last for 80 years after the author’s death).

This authorisation may also be granted by a third party (gallery, museum, collector or company) that has acquired the rights to exploit the work by contract.

To apply for the permit, it is advisable to sign a licence agreement, which clearly states:

• the type of use (digital, print, commercial or non-commercial);
• the geographic and temporal scope of the authorisation; and
• the economic conditions (whether there are royalty payments or usage fees).

Cases in Which Authorisation Is Not Required

There are situations in which the law allows the use of images of protected works without permission, provided that the moral rights of the author are respected (attribution and respect for the integrity of the work), as set out below.

• The reproduction and public communication of fragments of works is permitted, but only by institutions of higher education and for non-commercial purposes. In this case, the reproduction must be justified for educational purposes and always citing the author.
• In Colombia, there is no general exception allowing the reproduction of artworks in public spaces without authorisation. This legal gap creates uncertainty, as copyright protection may still apply, requiring permission from the rights holder. To avoid potential claims, it is advisable to act cautiously and obtain authorisation when possible.

Possible Penalties for Unauthorised Use

If an image is used without proper authorisation, the rights holder may demand:

• compensation for damages in civil matters, and cessation of unauthorised use through legal action before an ordinary civil judge;
• administrative sanctions and fines imposed by the DNDA; and
• criminal penalties for copyright infringement.

Unlike other countries, Colombia does not have a rule that determines who has the legal authority to authenticate a work of a deceased artist. Therefore, in cases of dispute, authentication is based on expert criteria, documentary evidence and expert opinion.

However, the right to determine the authenticity of a work is usually attached to the legal heirs of the artist, the holders of their economic rights or recognised experts in their work.

Heirs and Holders of Patrimonial Rights

According to Andean Decision 351 of 1993 and Article 21 of Law 23 of 1982, the economic rights over a work of art remain in force until 80 years after the author’s death. During this period, the heirs or holders of the rights may have an influence on the authentication of the work. In this case, the heirs may:

• manage the artist’s legacy and validate the authenticity of their works, if they have documentation, archives or certificates from the artist themself; and
• create foundations, archives or authentication committees, as happens in other countries with the heirs of recognised artists.

Experts in the Artist’s Work

In practice, the authentication of a work after the artist’s death can be carried out by:

• art historians and experts specialised in the artist’s work;
• museums and galleries that have worked with the artist during their lifetime; or
• catalogs raisonnés, which are academic documents that bring together the entire production of an artist and serve as a reference to determine the authenticity of new works.

Fraud and Litigation Cases

If a work is counterfeited or its authenticity is questioned, the heirs or owners of the rights may initiate legal actions for counterfeiting or fraud, based on Article 271 of the Colombian Criminal Code, which punishes the unauthorised reproduction or commercialisation of protected works. In addition to this, a legal tool can be used, which is to request expert opinions before the Superintendence of Industry and Commerce or the DNDA to protect the rights over the work.

In Colombia, there is no rule that obliges a foundation, heir or holder of moral rights to include a work in the catalog raisonné of an artist or to issue a favourable opinion in a certificate of authenticity. However, copyright legislation protects the integrity of the work and the moral rights of the author, which may generate legal implications in cases of arbitrary exclusion.

Moral Rights and Autonomy in Authentication

Moral rights, regulated by Andean Decision 351 of 1993 and Law 23 of 1982, are inalienable, non-transferable and imprescriptible. This means that, although economic rights may be inherited or assigned, moral rights remain with the author and, after their death, may be exercised by their heirs or successors.

In practice, the decision to include a work in a catalog raisonné rests with the policy of the foundation, committee of experts or entity responsible for the artist’s legacy. There is no legal obligation to force them to do so, as the catalog raisonné is a private, academic document, not an official register regulated by the State.

The entities in charge of authentication have full autonomy to evaluate the authenticity of a work, based on expert studies and their own criteria. However, if a foundation or heir acts arbitrarily or in bad faith, affecting the value of a work or its market, there may be viable legal actions to challenge the decision.

When Can Legal Action Be Taken?

If the unjustified exclusion of work generates demonstrable damages, the affected party may initiate legal action on the following grounds:

• protection of the right to a good name and honour, fundamental rights protected by the Political Constitution of Colombia, if the denial unfairly affects the reputation of the owner of the work;
• civil actions for damages if the exclusion is shown to have caused tangible economic harm; and
• actions before the Superintendence of Industry and Commerce, if an undue restriction to the commercialisation of the work in the market is evidenced.

Fraud and Forgery in Authenticity Certifications

If a third party attempts to force a foundation or entity to issue a false certification of authenticity, it could incur in crimes of false documentation or fraud, punishable under the Colombian Criminal Code.

If someone buys a work of art believing it to be authentic and later discovers that it is not, the buyer or whoever represents his rights has several legal options to recover his money or cancel the purchase. These actions are supported by the Colombian Civil Code, the Code of Commerce and the Consumer Statute and depend on the specific circumstances of the transaction, which must be analyzed to define which of them to resort to.

Relative Nullity Due to Error

The relative nullity for errors in the essential quality of the work applies when the buyer acquires the work under a mistaken belief about its authenticity. If it is proven that this error affected his purchase decision, the contract may be declared voidable, which means that the parties must return what they received: the buyer delivers the work and recovers his money. This mechanism is regulated in the Civil Code, which establishes that consent is invalid when there is an error about the substance or essential quality of the object purchased.

Hidden Defects

Another alternative is the action for hidden defects, applicable if the falsity of the work was not evident at the time of purchase. In this case, the buyer can sue the seller and demand the return of the money or, if preferred, a reduction of the price. To be exempt from liability, the seller would have to prove that he was unaware of the falsity of the work.

If the purchase of the fake work generates economic losses for the buyer, for example, if the buyer resold it and then had to return the money, he can file a lawsuit for damages. This would allow him to claim the return of the value paid, as well as the reimbursement of legal expenses, expert opinions and any other economic loss derived from the deception.

Misleading Advertising and Warranty

Finally, if the work was acquired in a gallery, auction or art house, the buyer may rely on the Consumer Statute. If the seller assured that the work was authentic and it turned out to be a fake, the buyer may demand the return of the money under the misleading advertising regulation, which is expressly prohibited by law. Likewise, if the seller offered a guarantee of authenticity, he is obliged to respect it or reimburse the amount paid.

In short, the law protects those who buy counterfeit works of art, as long as they can prove deception or error in the transaction. The legal action that can be taken will depend on the conditions of the sale and the guarantees offered by the seller.

Cultural heritage is much more than the set of monuments and traditions in Colombia: it is the very identity of the Nation, and is the reflection of the country’s history and identity.

What Is Cultural Heritage?

Colombian cultural heritage encompasses both tangible and intangible assets. According to Law 397 of 1997, it includes tangible assets such as historic buildings, works of art and archaeological sites, as well as intangible assets, ranging from cultural expressions to ancestral knowledge transmitted from generation to generation. Law 1185 of 2008 created the National Cultural Heritage System, responsible for its protection and safeguarding.

Types of Cultural Heritage in Colombia

Cultural property is classified into several categories, each with specific protection rules.

• BICs: these are assets with a high historical, artistic or architectural value and require special protection.
• Archaeological heritage: this includes the ruins of past cultures. These assets belong to the State and cannot be sold or transferred.
• Intangible cultural heritage: practices, expressions and knowledge that define a community and are transmitted from generation to generation.

How is Cultural Heritage Protected?

To ensure their conservation, several protection measures are in place, as set out below.

• Registration and declaration: assets may be recognised as BICs at the national, departmental or municipal level. The National Council of Cultural Heritage is the entity that evaluates and grants these declarations.
• Restrictions on commercialisation: the export of goods considered cultural heritage is strictly regulated. In the case of archaeological heritage, its sale and export are completely prohibited.
• Penalties for damage to heritage: the alteration, destruction or illegal trafficking of cultural property is not a misdemeanour. According to the Penal Code, these actions can lead to serious penalties, including imprisonment.

Possession of property in Colombia is governed by the regulation of acquisitive prescription of ownership (usucapion), which allows a person to acquire ownership of a property after possessing it in a public, peaceful and uninterrupted manner for a determined period, as established in the Colombian Civil Code. However, in the case of assets belonging to cultural heritage, there are legal restrictions that prevent their acquisition by this means.

Prohibition of Acquisitive Prescription of Cultural Heritage Property

According to Law 1185 of 2008, which amends Law 397 of 1997, property declared Property of Cultural Interest or belonging to the archaeological heritage of the Nation cannot be acquired through acquisitive prescription of ownership. Their protection goes beyond the legal sphere and has constitutional support: “The cultural heritage of the Nation is under the protection of the State. The assets that comprise it are inalienable, unseizable and imprescriptible.”

Therefore, any person who owns a property that is part of the cultural or archaeological heritage will not be able to acquire its ownership by prescription, even if they have maintained possession for a long time.

Differences With Privately Owned Cultural Property

If a cultural property has not been declared as a Property of Cultural Interest or is part of the archaeological heritage of the Nation, but belongs to a private individual, it could be subject to acquisitive prescription, provided that the requirements of the Civil Code and Law 791 of 2002, which establishes the terms for the acquisitive prescription of ownership, are met:

• three years (personal property) and five years (real estate) of possession with just title and good faith (ordinary statute of limitations); or
• ten years of possession without just a title (extraordinary prescription).

However, if the State or a public entity subsequently declares that a private property has patrimonial value, it may be subject to restrictions on its use and commercialisation, limiting its possible acquisition by usucapion.

Legal Consequences of the Illegal Possession of Cultural Heritage Property

Illegal trafficking or improper possession of cultural heritage property may result in civil and criminal penalties in Colombia.

If a private individual discovers a cultural heritage property in Colombia, they do not acquire ownership or disposal rights over it, as these assets belong to the State and are inalienable, unseizable and imprescriptible. The Political Constitution, Law 397 of 1997 (amended by Law 1185 of 2008), and the Colombian Criminal Code establish that cultural heritage is under State protection and cannot be privately appropriated. Archaeological heritage, in particular, is strictly safeguarded against commercialization or transfer, reinforcing the State’s exclusive rights over these assets, regardless of their location or discoverer.

Anyone who finds a cultural heritage property must report it immediately to the competent authorities, such as the Ministry of Culture, the Colombian Institute of Anthropology and History (for archaeological findings) or local government offices. Failure to do so can result in administrative and criminal sanctions. The unauthorized commercialization or export of these assets is strictly prohibited, and any attempt to sell, transport or trade them without State authorization carries civil and criminal penalties, including imprisonment and heavy fines.

A contract for the sale of works of art must include essential clauses to ensure its validity and protect the interests of the buyer, seller, and artist if the seller is not the creator. According to the Civil and Commercial Codes, the contract must reflect the parties’ consent, clearly determine the artwork, and establish a certain price in local or foreign currency. Given the cultural and economic significance of art, additional clauses should be included to enhance legal security, such as guarantees of authenticity and provenance, supported by certificates and declarations ensuring the work is not of illicit origin or classified as a BIC. The contract should also specify the state of conservation and past restorations, ideally with a technical report and photographs to prevent future disputes.

Key provisions should address delivery terms, risk transfer, and responsibilities for transport and packaging, ensuring clarity on the buyer’s right to reject the work if it does not match the agreed description. Since purchasing a work does not automatically transfer copyright, the contract must specify any rights granted, in accordance with Law 23 of 1982 and Andean Decision 351 of 1993. Optional but valuable clauses include resale rights (droit de suite) to compensate artists for future sales, and a dispute resolution mechanism such as mediation or arbitration, which is preferable to the slow and unspecialised ordinary courts. These provisions strengthen legal certainty, mitigate risks and compensate for gaps in Colombian regulations, ensuring clarity and predictability in art transactions.

The export of artworks from Colombia is subject to regulations on cultural heritage, foreign trade and taxation to prevent the illegal exit of cultural assets and ensure proper documentation. If a work is classified as a BIC, its export requires prior authorisation from the Ministry of Culture, which evaluates the request and, if approved, issues an export certificate. If the work is not a BIC, its export is permitted but must comply with customs and tax requirements, including an export declaration for works, as established by Decree 1165 of 2019. Although the export of art is VAT-exempt, other tax obligations may apply depending on the destination.

Additionally, any international transaction must be backed by a sales contract defining payment terms and liability during transport. Given the fragility and high value of artworks, it is advisable to use specialised art logistics services, ensure proper packaging to protect against environmental factors, and obtain transport insurance to cover potential risks. Complete and accurate documentation is crucial to avoid customs issues and ensure a smooth export process.

In Colombia, gallery owners and auction houses may face civil, administrative and criminal liability if they sell fake or plagiarised works of art. Depending on the case, they may be sued for breach of contract, fraud, copyright infringement or misleading advertising, as indicated at 4.3 Legal Remedies Following a Declaration of Inauthenticity.

Returning to this point, from the civil point of view, the sale of a false or plagiarised work may give rise to the nullity of the contract for essential error, which would allow the buyer to demand a return of the money. In addition, if the work presents hidden defects that make it unfit for use, the buyer may claim civil damages. It is also possible to bring an action for damages if the counterfeit generates economic losses for the buyer.

At the administrative level, galleries and auction houses may be sanctioned for misleading advertising if they promote a work as authentic without sufficient evidence. The Consumer Statute establishes that any false or misleading information about the characteristics of the product may result in fines and sanctions imposed by the Superintendence of Industry and Commerce.

In the criminal field, if the sale of counterfeit or plagiarised works is done with malice, that is, with intent to deceive, those responsible could be prosecuted for fraud or swindling under the Colombian Criminal Code.

To mitigate these risks, it is essential that galleries and auction houses obtain certificates of authenticity and conduct expert studies before marketing a work. Documentation supporting the provenance and authenticity of the piece not only protects the buyer but also reduces sellers’ legal exposure and liability in the event of a dispute.

Galleries and auction houses must conduct thorough verifications before selling artworks to prevent the commercialisation of counterfeit, plagiarised or illicitly sourced pieces. This includes ensuring the authenticity of the work through certificates issued by the artist or experts, verifying provenance records, and conducting expert analyses when necessary. Sellers are responsible for hidden defects, and unauthorised commercialisation of protected works may result in legal penalties.

It is also essential to confirm the seller’s legitimate ownership and that the work has not been stolen or illicitly trafficked. This involves requesting purchase or assignment documents, consulting international stolen art databases (Interpol, Art Loss Register), and verifying whether the artwork has been declared a BIC, which could impose sales or export restrictions. If such a designation applies, authorisation from the Ministry of Culture may be required.

To ensure transparency and prevent misleading advertising, galleries and auction houses must provide accurate information on the work, including details on the artist, technique, dimensions, certifications, and any restorations or alterations. Additionally, they must comply with copyright regulations when dealing with protected works to avoid legal infringements.

An art advisor is a professional who guides collectors, investors and companies in the purchase, sale, management and conservation of works of art. Their role is broad, ranging from verifying the authenticity and value of works of art to compliance with legal regulations in art transactions. Although Colombian legislation does not specifically regulate this profession, the advisor’s responsibilities are governed by the Code of Commerce, the Civil Code and the laws on cultural heritage and copyright. The following are the most important responsibilities to be considered.

Duty of Care and Contractual Liability

The art advisor must act with diligence and good faith in their relationship with the client, ensuring that the purchase or sale of the work is legitimate and transparent. The advisor must provide truthful and documented information about the work. Failure to comply with their diligence and professional duties may result in civil liability if they cause damage due to negligence or erroneous advice.

Verification of Authenticity and Provenance of the Works

The advisor has a duty to ensure that the work is not a forgery or the result of illicit trafficking. To this end, it is recommended that they carry out expert studies and obtain certificates of authenticity, verify the provenance of the work in databases of stolen art and check if the work is catalogued as a BIC, which could restrict its commercialisation or exportation.

Compliance With Art Sale and Purchase Regulations

If the advisor is involved in a transaction, it must ensure that the purchase contract complies, at a minimum, with the applicable legislation. Ideally, they should be supported by a lawyer specialised in the matter to include clauses that not only protect the parties from a contractual approach but also reduce the need to resort to judicial instances.

In this regard, it is essential to draft or review contracts that clearly establish aspects such as the authenticity of the work, delivery conditions and reproduction rights. Likewise, if the work is to be exported, it is advisable to seek specialised advice on taxes and tariffs to comply with applicable tax and customs regulations.

Protection of Copyrights and Reproduction of Works

The advisor should provide the buyer and seller with clear guidance on restrictions on the use and reproduction of the work, ensuring that both parties understand the scope of the rights acquired. It is essential to determine whether the sale and purchase includes only physical ownership of the work or whether it also grants rights of reproduction, public communication or transformation.

Likewise, the advisor must verify that the transaction does not infringe third-party copyrights, which implies reviewing the applicable intellectual property regime, the existence of prior licences and possible contractual limitations. In case of doubt, it is recommended to obtain express authorisation from the rights holder or to include clauses that mitigate legal risks.

The art market is vulnerable to money laundering and terrorist financing due to the ease with which artworks can be used to move illicit funds. Although there is no specific regulation for the sector, galleries, auction houses and dealers must comply with general financial prevention rules established by the Organic Statute of the Financial System, the Anti-Corruption Statute, and the Financial Information and Analysis Unit (UIAF). Those involved in high-value transactions must implement due diligence measures, including KYC procedures, verification of fund origins, and monitoring of unusual transactions.

Entities such as galleries and auction houses must report suspicious transactions to the UIAF, maintain transaction records for at least five years, and implement internal ML/FT prevention policies. However, the sector faces challenges like the lack of specific regulation, difficulties in tracking art transactions, and the use of unregulated intermediaries, which obscure the origin of funds and the final beneficiary.

Despite regulatory gaps, market participants must apply anti-money laundering measures to prevent legal and reputational risks. It is recommended that they follow international ML/FT prevention standards and improve documentation of financial transactions to enhance transparency and compliance with existing regulations.

In Colombia, the collections of libraries, art galleries and archives may be protected as cultural heritage when they have significant historical, artistic or scientific value. Their protection is regulated by the Political Constitution, Law 397 of 1997, Decree 1080 of 2015 and other specific regulations.

When is a Collection Cultural Heritage?

For a library, gallery or archive collection to be protected as national cultural heritage, it must be declared a BIC by the Ministry of Culture.

Conditions for the declaration of BIC include:

• historical, artistic or scientific relevance of the collection;
• evaluation by the National Council of Cultural Heritage; and
• publication of the declaration in the Registry of Properties of Cultural Interest.

Protection of Libraries and Archives as Documentary Heritage

Libraries and archives may be protected if they contain documents, books or manuscripts of historical value. For example, the General Archive of the Nation protects historical documents with patrimonial value.

Protection of Art Galleries and Private Collections

Art collections in galleries or private collections may be protected if they have an exceptional cultural value, for this, it is important to analyse the case to determine whether the collection should represent a high historical or artistic value. If a work is declared a BIC, its commercialisation and export may be restricted.

Restrictions and obligations for protected collections

If a collection is declared cultural heritage, its owner must comply with certain obligations, namely:

• they may not destroy or modify the collection without permission from the competent authority;
• they should allow access to researchers and specialists in certain cases; and
• exportation requires prior authorisation.

Photographs may be protected by copyright if they comply with the requirement of originality and creativity. Colombian law establishes the conditions under which these images are recognised as protected works and regulates their exceptions and limitations.

For a photograph to be considered an artistic work and, therefore, protected by copyright, it must be the result of an original intellectual creation. This implies that the photographer has actively intervened in its production, reflecting their creativity through composition, lighting, angle, colour and concept. The “mechanical capture of reality” is not enough, the image must evidence a creative intention and a personal selection of elements that differentiate it from a visual reproduction.

By way of example, a press photograph that simply documents an event without artistic intervention may not be protected as a work, while an image with a defined aesthetic concept, a special technique or an artistic approach may benefit from this protection.

When a photograph meets these criteria of originality, the author automatically acquires copyright from the moment of its creation (moral and economic rights).

Although the registration of a photograph with the DNDA is not a mandatory requirement for its protection, it is useful as proof of ownership in case of dispute.

It is also important to mention that not all photographs enjoy this protection, since images that are mere mechanical reproductions of objects, documents or landscapes without creative intervention are not considered copyrighted works. A clear example of this would be a photograph of a page of a book or an image captured by a surveillance camera without significant human interaction.

This is why the protection of a photograph under Colombian copyright law depends on its originality and creativity. This protection grants the photographer exclusive rights over their work, guaranteeing the recognition of their authorship and control over its economic exploitation. Although registration with the DNDA is not mandatory, it is advisable to reinforce the proof of ownership in case of a dispute.

The protection of photographs depends on their nature and use. Artistic photographs are protected under copyright law if they demonstrate originality and creative intervention, as established by Law 23 of 1982 and Andean Decision 351 of 1993. However, simple mechanical reproductions without originality do not receive this protection. Journalistic photographs can also be protected, but their use for news or criticism has exceptions under the Andean Decision 351, while Law 29 of 1944 safeguards individuals’ rights when images affect their honour or reputation.

Security, identification and government control images are not subject to copyright but must comply with personal data protection laws, specifically Law 1581 of 2012 and Decree 1377 of 2013. This means that images from passports, identity documents or security cameras cannot be used freely without respecting privacy regulations. Similarly, while taking photographs in public spaces is generally allowed, their use may be restricted if they infringe on a person’s privacy or reputation, as protected by the Colombian Constitution.

Ultimately, the legal protection of photographs in Colombia varies based on their purpose. While artistic and journalistic images may be covered by copyright, those related to official documentation, security or captured in public spaces are mainly regulated by personal data laws and privacy rights. Commercial use of a person’s image requires their authorisation, reinforcing the balance between creative freedom and legal restrictions.

An NFT is a unique and unrepeatable digital asset registered on a blockchain. Unlike cryptocurrencies, which are interchangeable with each other, NFTs represent exclusive ownership over a digital object, such as a work of art, a photograph, a video, a music file or any other digital content.

Main Characteristics of the NFTs

• They cannot be replaced by another identical token, since each NFT has a unique identifier.
• Their authenticity and provenance are verified in a blockchain.
• Although anyone can view or download an NFT, only the registered owner on the blockchain has an official title to the asset.
• They can be bought, sold and transferred through specialised platforms such as OpenSea, Rarible or Foundation.

NFT Applications in the Art Market

• Digital art: allow artists to sell digital works with proof of authenticity and ownership rights.
• Collectibles: from digital cards to exclusive items from brands and sports teams.
• Music and entertainment: artists and creators can tokenise their content and receive royalties from retailers.
• Metaverse and video games: used to represent virtual objects, terrains and avatars within digital platforms.

Counterfeit NFTs can exist despite blockchain’s authentication capabilities, as the technology ensures traceability but not content authenticity. Fraud occurs through unauthorised tokenisation of works, fraudulent platforms, malicious smart contracts, and duplicating NFTs across different networks. Buyers can protect themselves by verifying authorship on recognised platforms, checking blockchain records (Etherscan, Solscan), reviewing transaction history, and avoiding suspiciously low prices. Trusted marketplaces with identity verification reduce risks. While blockchain confirms NFT ownership, it does not prevent fraud, making due diligence essential to avoid scams.

The generational transfer of art requires legal, tax and estate planning to ensure its conservation, minimise conflicts and optimise taxes. In Colombia, this process is regulated by the Civil and Commercial Codes, the Tax Statute and cultural heritage laws. Key steps include determining ownership and market value, obtaining authenticity certificates and verifying cultural interest status. Succession planning options include wills, trusts and lifetime gifts. Tax implications vary, but strategies like progressive donations or exemptions through cultural donations can reduce the burden. For historically significant collections, preservation strategies include heritage funds, private museums or institutional agreements. Proper planning ensures long-term protection and legal compliance.

In Colombia, the succession of works of art in the absence of a will (intestate succession) or by will (testamentary succession) can generate legal conflicts between heirs, disputes over ownership and significant tax burdens.

Legal Problems in the Succession of Works of Art

One of the first challenges is to determine whether the works belong to the deceased or whether there are third parties with rights over them, due to the lack of documents evidencing ownership or the existence of assignment contracts or shared rights with third parties.

Disputes Between Heirs in Intestate Succession

If the deceased did not leave a will, the distribution of the works of art is carried out according to the law applicable to inheritance law, which may generate conflicts such as the difficulty in the equitable division of the works among heirs, and the need to sell the work to distribute the value among the heirs.

Cultural Heritage Restrictions

As mentioned at 6.2 Issues in Cross-Border Art Sales, if the work has been declared a BIC, its commercialisation or export may be restricted. This means that its sale or exit from the country requires the approval of the Ministry of Culture. In this case the heirs may be obliged to keep the work in Colombia.

Tax Problems in the Succession of Works of Art

Inheritance tax

In Colombia, heirs must pay an occasional gain tax on assets received in inheritance. The occasional gain tax rate for inheritance is 10% on the value of the goods received. This implies that if the work has a high value, the tax may be high. In this case, the heirs may be forced to sell the work to pay the tax.

Tax Valuation of Works of Art

To determine the taxable base, the work must be valued at market price. This is why the lack of consensus on the valuation of the work brings with it the risk of undervaluation or overvaluation of the work.

Donating works of art in Colombia carries tax obligations for both the donor and recipient. The recipient must pay a 10% occasional gain tax based on the market value of the work, as required by the Tax Statute. If the value is unclear, the DIAN may demand an appraisal. However, donations to recognised non-profits for cultural purposes allow the donor to deduct up to 25% of the donated value from income tax. Since donations increase the recipient’s net worth, they are also subject to income tax. Proper planning is essential to minimise tax burdens and maximise benefits.

In Colombia, inheritances and donations of works of art are generally subject to the occasional gain tax of 10%, according to the Tax Statute. However, there are exceptions in which certain works may be exempt or excluded from this tax, depending on their purpose, beneficiary or special recognition.

Works of Art Donated to Non-Profit Entities for Cultural Purposes

If a work of art is donated to a non-profit entity, such as museums, libraries, historical archives or cultural foundations, it does not generate occasional income tax for the beneficiary and the donor may receive tax benefits. In some cases, donations to an entity qualified under the Special Tax Regime may be deducted up to 25% of the income tax.

Works of Art Declared BIC

If a work has been declared BIC, its transfer by inheritance or donation may be exempt from certain taxes, provided that conditions of conservation and use are met.

In Colombia, a work of art can be placed in a trust for administration. This allows a settlor to transfer ownership to a trust company, which manages it for a specific purpose benefiting a third party. While trusts are a recognised legal structure for managing assets, their constitution may generate taxes depending on whether ownership is transferred. If the trust is purely administrative, no occasional gain tax applies, and tax obligations remain with the settlor or beneficiaries. Donating the collection to a non-profit within the trust may offer tax benefits, making careful structuring essential to optimise its fiscal impact.