Art & Cultural Property Law 2026 Comparisons

In the United States, art law is an interdisciplinary field that incorporates multiple legal disciplines, such as intellectual property, contracts, property, commercial and constitutional law.

The legal framework is shaped by federal and state statutes and regulations, as well as case law.

Copyright rights under Title 17 of the United States Code are the primary legal framework that protects an artist’s rights in their original works (as described in more detail below). The Uniform Commercial Code (the “UCC”) provides default rules for common business transactions and risk allocation. Article 2 governs the sale of goods, such as art, and addresses contract formation requirements, implied and express warranties, risk of loss and remedies for breach. Article 9 governs secured transactions and determines how interests in art would be perfected and which party has priority when there are competing claims. Article 12 governs certain digital assets (such as NFTs) and sets out rules for how rights can be transferred and protected.

Copyright rights under Title 17 of the United States Code give the artist legal rights to “original works of authorship” that are “fixed in any tangible medium of expression” (17 U.S.C. Section 102(a)). Those rights arise automatically upon fixation and include exclusive rights to:

• display;
• create derivative works;
• reproduce;
• sell; and
• transfer the work. The artist must register the copyright before bringing an infringement lawsuit and registration can allow the artist to have access to certain remedies that would not otherwise be available.

The artist also has property rights. An artist’s rights in a work of art can be understood as two separate forms of property rights. First, the artist may have property rights in the physical work of art, including the rights to possess it, exclude others from it, transfer it by sale or gift and seek state-law remedies if it is taken or withheld. Second, the artist may hold the copyright ownership. Under the Copyright Act, ownership of the copyright is a property right. Even if the artist sells the physical work, the artist may retain the copyright and would retain the exclusive rights to reproduce the work, authorise derivative works, distribute copies and publicly display the image, unless those rights are expressly transferred. In other words, the physical artwork and the underlying copyright are distinct “property” interests and an artist can retain ongoing control over many uses of the artwork’s image even when someone else owns the physical piece.

An artist may also have moral rights, such as rights of attribution and integrity, under the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A).

Under Section 101 of the Copyright Act, a “joint work” is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” When a work qualifies as a joint work, the authors are generally co-owners of the copyright in the entire work. A “collective work” is a work where a number of contributions are assembled into a collective work, such as an anthology or periodical issue. In that case, the copyright in the individual contribution stays with each contributor.

Violating copyright in art can lead to civil and, in some cases, criminal penalties. Remedies typically include injunctions (17 U.S.C. Section 502), impoundment of the infringing materials (17 U.S.C. Section 503) and damages (actual damages and profits, or statutory damages) (17 U.S.C. Section 504). The court, in its discretion, may also award costs for attorney’s fees. Willful infringement, such as if the infringement was committed for purposes of “commercial advantage or private financial gain,” can be prosecuted criminally under 17 U.S.C. Section 506. Statutory damages are generally USD750 to USD30,000 per work and may be increased up to USD150,000 per work for willful infringement. However, registration of the copyright is a procedural prerequisite for the artist to bring a lawsuit and affects the remedies available to the artist.

Under 17 U.S.C. Section 408, to register the artwork, the copyright owner should file an application with the US Copyright Office, submit the required deposit and pay the filing fee. Registration of the work creates a written record of the copyright ownership and is “prima facie evidence of the validity of the copyright” (if made before or within five years of first publication). Under 17 U.S.C. Section 410, if the Copyright Office accepts the claim, it will issue a certificate of registration. The effective date of the copyright registration is the date the application, deposit and fee were accepted by the US Copyright Office.

A resale right is a legal right that allows artist to receive a royalty when their art is sold while their copyright is in effect. With the exception of California and Georgia, US federal and state law does not recognise resale rights. However, the California Resale Royalty Act (Cal. Civ. Code § 986) has been held invalid for most sales after the effective date of the 1976 Copyright Act on the basis of federal pre-emption. Therefore, the resale rights in the United States are limited and not broadly available.

The ownership of the copyright is a property right that is separate from the ownership of the physical expression of the underlying work. Although the physical work may be transferred, the copyright rights do not transfer. However, permission to use images of artworks protected by copyright may be obtained by securing permission from the copyright owner or by obtaining a license from the copyright owner, which may be exclusive or non-exclusive. Although a non-exclusive license may be granted by written or oral agreement, it should be in writing to ensure enforceability. The individual seeking to use work they did not create should first determine the work's copyright status. Once the copyright owner’s identity has been determined, the individual should contact the copyright owner for permission to use the work. The individual seeking to use the work should specify facts about the use, including the specific work, the duration and their intended use.

There is no standalone exclusive right to authenticate an artist's work after the artist’s death. Generally, after an artist’s death, the artist’s estate or a foundation may authenticate their artworks.

US courts have generally approached catalogue raisonnés and authenticity opinions as matters of scholarly discretion. Therefore, courts are reluctant to order the inclusion or exclusion of a work or compel the authenticator to alter an attribution. For example, New York courts have emphasised that the market and not the court ultimately decides how much weight a catalogue raisonné carries (see Thome v Alexander & Louisa Calder Found., 70 A.D.3d 88 (N.Y. App. Div. 1st Dep’t 2009) and Mayor Gallery Ltd v Agnes Martin Catalogue Raisonne LLC, No 655489/2016, 2019 BL 269316 (N.Y. Sup. Ct. 2 July 2019)).

A buyer who later learns that the artwork they purchased is inauthentic may pursue contract and tort theories, subject to the governing state law and any contractual disclaimers or limitations. The buyer may assert breach of express warranty by showing that the seller made an affirmation of fact regarding the work's authenticity, which became part of the basis of the transaction. If not effectively disclaimed, the buyer may also assert breach of implied warranties, such as merchantability and fitness for a particular purpose. The buyer may argue negligent misrepresentation by alleging that the seller supplied false information that the buyer relied on and suffered a pecuniary loss. The buyer may also seek rescission based on mutual mistake where both the seller and buyer were mistaken about a basic assumption (ie, authenticity), the mistake materially affected the agreed exchange and the buyer does not bear the risk of the mistake.

The United States does not have a single definition of “cultural heritage.” Generally, cultural heritage is understood to mean items or practices/customs that a community or society inherits and passes on to future generations. While the United States has announced it will withdraw from UNESCO effective December 31, 2026, under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property “cultural property” is defined broadly to include property designated as being important to archaeology, prehistory, history, literature, art or science, including categories of property of artistic interest The United States also enacted the National Historic Preservation Act (54 U.S.C. § 300101 et seq) which defines “historic property” as any prehistoric or historic district, site, building, structure, or object listed on or eligible for the National Register, including “artifacts, records and material remains” related to it. Additionally, the Native American Graves Protection and Repatriation Act (25 U.S.C. §§ 3001–3013) regulates particular categories of “cultural items,” including human remains, funerary objects, sacred objects and objects of cultural patrimony.

Adverse possession is primarily a property doctrine under which a possessor can acquire ownership of real property by holding it for the statutory period in a manner that is actual, open and notorious, exclusive, hostile (ie, without the owner’s permission) and continuous. Generally, ownership disputes over cultural objects in the United States would not be addressed under adverse possession. Additionally, where an object was stolen, a later good-faith purchaser for value typically would not be able to obtain good title under the Uniform Commercial Code.

For instance, in United States v Schultz, 333 F.3d 393, 395 (2d Cir. 2003), the court held that the National Stolen Property Act treats antiquities as “stolen” where a foreign nation has a valid patrimony law that vests ownership of certain cultural objects in the state. In Kunstsammlungen zu Weimar v Elicofon, 678 F.2d 1150, 1165 (2d Cir. 1982), the court found that the possessor lacked a superior title and granted relief to the museum that sought the return of two Dürer paintings stolen during/after WWII that later appeared in the hands of a New York collector. The court, applying New York law, stated that a “purchaser cannot acquire good title from a thief.”

When a private individual discovers a cultural heritage item in the United States, the state’s rights primarily depend on (i) where the item is found and (ii) what type of item it is. On federal or tribal land, federal statutes can limit private acquisition. For example, the Archaeological Resources Protection Act (16 U.S.C. §§ 470aa–470mm) generally prohibits excavating or removing archaeological resources on public or Native American lands without a permit and authorises civil/criminal enforcement. For Native American human remains and certain cultural items discovered on Federal or tribal lands, NAGPRA provides an ownership/control hierarchy (prioritising lineal descendants and affiliated tribes/Native Hawaiian organisations), which can vest ownership/control in those parties rather than the finder. Although on private land, ownership is typically governed by state property law (including landowner-versus-finder principles), the closer the object is to a protected cultural heritage item, the more likely there will be regulatory and ownership constraints.

An art sale contract typically covers:

• the parties and the transaction structure (ie, identity of the seller and buyer and whether the sale is private, through a gallery or by auction);
• a clear identification of the art (ie, the artist, title, medium, dimensions, date); and
• the purchase price and payment mechanics (ie, deposit, timing, wire instructions, consequences of non-payment).

Agreements may also cover condition and inspection procedures, provenance and authenticity documentation and the seller’s representations and warranties (such as good title and absence of liens). Finally, they may address intellectual property and permitted image use, as well as remedies if either party breaches the agreement.

When art moves across borders, regulatory compliance is important, as misstatements can lead to the detention and seizure of art. US Customs and Border Protection has authority to impose penalties on any merchandise entered – or attempted to be entered – into the United States through materially false statements, fraudulent documents or material omissions, including falsified invoices, altered provenance records or inaccurate entry data. Criminal exposure can also arise where someone knowingly uses false, forged, or fraudulent invoices or documents or otherwise imports goods “contrary to law.” A failure to properly declare the merchandise can result in penalties and/or forfeiture. In addition, art and antiquities taken unlawfully may be treated as stolen property, making them vulnerable to government seizure under the National Stolen Property Act (18 U.S.C. §§ 2314–2315) and related laws.

Title and provenance risks can compound once the object is abroad. In the United States, the baseline rule is that a buyer generally acquires only the title the seller had; if the seller’s title is void because the work was stolen, the buyer typically cannot improve on it by purchasing in good faith. Other jurisdictions may apply rules, which means an artwork with provenance gaps may become harder to sell, be detained or be claimed and recovered in a forum whose rules are less favourable to the current holder.

Finally, logistics and risk allocation are central because many losses occur in transit. Practically, collectors and dealers often reduce exposure by using specialist art shippers (packing/crating, climate controls, secure handling) and by documenting condition before and after shipment (photos/condition reports) so any claim is provable.

Gallery owners and auction houses can face liability if they sell works that are inauthentic. When a gallery or auction house sells a work on consignment, a consignment agreement may govern. The consignment agreement may include the consignor’s representations and warranties about authenticity.

A purchaser of an inauthentic work may have several remedies under contract and tort law, including under the Uniform Commercial Code. Under Uniform Commercial Code Section 2-313, a seller’s affirmation of fact, promise, or description regarding authorship or authenticity can create an express warranty if it becomes part of the basis of the bargain. If the work is later determined not to be authentic, the buyer may seek contract remedies for breach of that warranty. These default protections, however, are frequently shaped by the parties’ agreement – particularly in gallery invoices and auction “conditions of sale” – which may limit, disclaim, or define the scope of authenticity warranties and remedies.

Additionally, buyers may have some protection under the implied warranty of merchantability under Uniform Commercial Code Section 2-314 when purchasing art from prominent dealers or galleries who are considered a merchant dealing in “goods of that kind.” However, as sellers can modify the express warranties through contract and it is difficult for buyers to prove a prima facie case for an implied warranty of merchantability, the remedies provided under the Uniform Commercial Code may be inadequate.

A good-faith buyer may also bring a tort claim for fraud, or actions for negligent and/or fraudulent misrepresentation, such as by claiming that the auction house was negligent in providing that the work was authentic. Contract law, particularly the doctrine of mutual mistake, may provide some protection for a good-faith buyer. The buyer may claim that authorship is an important provision of an art purchase contract and that the contract is unenforceable because both the buyer and seller were mistaken about a material term (ie, that the artwork was the authentic work of a specific artist).

There is no statutory or regulatory provision requiring auction houses to authenticate works that are sold. Nevertheless, an auction house’s duty to authenticate works of art is driven by the potential liabilities it may face under its contracts with buyers and under tort law, as well as the significant reputational damage that can result from selling inauthentic works. Reputable sellers will typically:

• conduct title and provenance due diligence;
• undertake an authenticity review;
• prepare condition and restoration disclosures;
• and conduct other due diligence checks.

An art adviser acts as a client’s representative in the art market, typically assisting the client with art acquisitions, serving as a consultant for art collections, and offering art investment advice, such as when to sell or purchase art.

The United States currently lacks a comprehensive regulatory framework for money laundering in the art market and is largely under-regulated. Most anti-money laundering/counter-terrorism financing regulations primarily apply to regulated financial institutions, such as banks and do not appear to be imposed on art market participants. The Money Laundering Control Act, which criminalises money laundering, could expose art market participants to criminal liability, for example, when illegally obtained funds are used to purchase artworks.

Art market participants do have compliance duties, such as cash-transaction reporting, which require any person engaged in a trade or business to file a report if they receive more than USD10,000 in cash in a single or in related transactions.

The Anti-Money Laundering Act of 2020 amended the Bank Secrecy Act to bring certain antiquities market participants within the definition of “financial institution” and directed FinCEN to issue implementing regulations; the associated AML program, customer due diligence and suspicious activity reporting obligations apply as of the effective date of the final regulations, not automatically upon enactment.

Collections can be treated as “cultural heritage” when they are valued for more than their market price, such as for their historic, artistic, scientific, religious or social significance to a community or nation. The legal consequences of that status are still largely determined by the domestic law of the place where the collection is located (and sometimes the place of origin), but several international laws may be applicable. For instance, the 1954 Hague Convention establishes protections for cultural property and cultural institutions during war and the 1970 UNESCO Convention prevents the illegal import, export and transfer of cultural property. As discussed above, the United States also has laws that include a range of measures intended to deter the illicit trafficking of cultural property. Additionally, state and local governments likewise protect historic and cultural assets through preservation boards/commissions, ordinances and permitting requirements.

The 1976 Copyright Act extends to originators of creative works, including photographers, if the work is an “original work of authorship” that is “fixed in any tangible medium of expression”, including pictorial works and satisfies the originality and fixation requirements. In Feist Publications, Inc. v Rural Tel. Serv. Co., 499 US 340, 345 (1991), the Court stated that the originality requirement requires the work to be independently created, rather than copied and to possess a minimal level of creativity. The court further stated that the creativity requirement is a low threshold that would be met by a majority of works.

In photography, a photographer can show originality through creative and artistic choices, such as selecting and arranging the subject matter, posing, camera placement and angle, framing, lighting decisions, lens selection and timing. Courts have treated these creative choices as protectable. For example, in the case Rogers v Koons, 960 F.2d 301 (2d Cir. 1992), the court held Rogers’ expressive elements, such as composition and lighting, were protected. The fixation requirement requires the work to be “fixed” in a way that is sufficiently permanent, rather than transitory in duration. For photographs, the fixation requirement is generally met when the image is captured in a digital file or film/print.

In the United States, even if a photograph is not eligible for protection under the 1976 Copyright Act, the photograph may be protected under other legal principles that may restrict the photograph’s use or dissemination. For instance, contracts and licensing can limit the reproduction or posting of the photograph through contractual terms, without relying on copyright. Photographs depicting identifiable individuals may be governed by privacy tort and right of publicity/appropriation doctrines, which may protect individuals against nonconsensual uses of their likeness. Federal trademark law can also apply when an image is used in advertising or promotion.

In the United States, “NFT” (non-fungible token) is commonly understood as a digital asset recorded or stored on a blockchain and associated with a specific asset, such as digital art or media. An NFT differs from other fungible assets, such as cryptocurrency, because each NFT is distinct and not interchangeable. The NFT is usually not the actual asset itself, and purchasing an NFT does not automatically confer ownership rights in the underlying asset. Although not common, the NFT and the underlying asset can be sold together. Typically, the sale of the NFT does not include the underlying asset or any intellectual property rights in the underlying asset. The intellectual property rights in the underlying asset can also be licensed for certain purposes.

It is possible for inauthentic or counterfeit NFTs to circulate. For instance, NFT scammers may create counterfeit NFTs, fake listings for sale or a fake NFT marketplace that mimics established platforms. Blockchain records do not automatically verify that the minter had legal rights or authorisation to tokenise the associated artwork, brand or collection. As a result, NFT scammers can mint and sell unauthorised NFTs.

Estate planning for art should consider whether to transfer the art during the lifetime or at death. The owner should also consider whether they wish to retain control over the art during their lifetime and provide for a disposition of the art under their will or revocable trust. This would result in the inclusion of the art in the owner’s gross estate for federal estate tax purposes, although it may offer administrative benefits. If the owner holds the art until death, the art receives a step-up in basis to fair market value as of the date of death (or if elected, the alternate valuation date). Any lifetime-gifting should consider federal gift, estate and GST tax exposure, along with income tax consequences for both the donor and donee. An owner may consider making a lifetime gift to prevent inclusion in the owner’s gross estate, particularly if they expect the art to appreciate significantly in value between the time of the gift and the owner’s death. Although the owner may have to pay gift tax, the owner is not subject to transfer taxes on the post-gift appreciation. Lifetime gifts may qualify for the annual exclusion under Internal Revenue Code (“IRC”) Section 2503(b) as well. The owner may also consider making a gift to a grantor trust and holding a substitution power, which would allow the owner to exchange the gifted art with an asset of equivalent value without any income tax consequences.

However, there are other factors that makes a testamentary transfer more favourable, especially if the owner wishes to retain assets for use during their lifetime, the owner does not wish to make inter vivos gifts, the owner’s gross estate at death is not expected to exceed the lifetime exemption amount, or if the owner is married and lives in a community property state, the surviving spouse may lose the benefit of the step-up in estate tax values on the surviving spouse’s one-half of the community property. Additionally, if the art is held in trust, the owner should consider appointing a trustee or adviser with expertise in art who can oversee the administration, valuation, conservation, sale and promotion of the art. The owner of the art should consider whether to appoint the specialist as an executor or trustee, or as an adviser to assist the trustee. The owner of the art may also consider whether the trustee should have exclusive authority to make decisions regarding the sale, license or use of the art.

If the deceased individual does not leave a Will or trust that directs the disposition of the art, intestacy under state law would determine how the art is distributed. Under intestate and/or testamentary succession, the art collection can be fragmented among multiple heirs under state probate rules, which may lead to disputes, including but not limited to control, possession, or conservation. Title to the art may become contested. Additionally, if the individual owns art that consists of cultural property from other nations, a foreign nation can assert ownership and seek to recover the art on the grounds that they were stolen. Similar rules may apply with respect to collections of Native American cultural property.

Fiscal issues centre on federal estate tax valuation. Artwork is included in the gross estate at date of death value under IRC § 2031 (with possible alternate valuation under § 2032). If the estate, gift or income tax return has been selected for audit and includes art valued at USD50,000 or more, it faces heightened scrutiny through the IRS Art Advisory Panel process.

Gifts of art would be taxed to the donor and not the recipient. An individual donee generally does not recognise income upon the receipt of the gift artwork because the value of the property acquired by gift is excluded from gross income under Internal Revenue Code (“IRC”) Section 102(a).

A donor can make a gift up to the annual exclusion amount per donee (for example, USD19,000 in 2026) without using the donor’s lifetime exemption. Gifts above the annual gift exclusion will use the donor’s lifetime exemption and the gift must be reported on a gift tax return. In 2026, each individual may gift up to USD15,000,000 in assets before being subject to gift tax. Under current law, the gift tax is 40% on transfers over the donor’s available exemption amount.

Although the donee does not recognise income upon receipt of the gifted art, the transfer is not advantageous for the donee as the donee typically receives carryover basis, subject to adjustments under IRC Section 1015.

A donor who donates the art to a qualified charitable organisation may receive an income-tax charitable deduction, subject to certain limitations. There are specific rules regarding appraisals for gifts of art.

Artwork may be excluded from transfer taxes when the transfer falls under statutory deductions or exclusions. Transfers of art to qualifying charitable organisations, such as museums, are deductible for estate tax purposes under IRC Section 2055 and for gift tax purposes under IRC Section 2522. Transfers to a surviving spouse may qualify for the marital deduction under IRC Section 2056 and IRC Section 2523. Lifetime gifts of artwork may qualify for the annual exclusion or fall under the lifetime exclusion amount (currently, USD15,000,0000). If a transfer of artwork does not qualify for an exclusion from transfer taxes and the value of such artwork exceeds the transferor’s available exclusion amount, then the transfer would be subject to gift tax (if the transfer is an inter vivos gift) or an estate tax (if the transfer is testamentary). The gift tax and estate tax rates are 40%. Gift and estate taxes are paid by the transferor and not the transferee. The US does not have a separate inheritance tax. In addition to gift and estate taxes, the US applies a “generation-skipping transfer” (GST) tax on transfers to individuals more than one generation below the transferor (called “skip-persons”). The tax is in addition to any gift or estate taxes that apply to the transfer. Each individual has USD15,000,000 of GST exemption. Transfers to skip persons in excess of USD15,000,000 are subject to a 40% GST tax.

Artwork can be placed in an irrevocable trust by gift or bequest, which may provide advantages over an outright gift or bequest of the art. Holding art in trust allows for the professional management of the art and also provides creditor and divorce claim protection. Additionally, by holding art in trust, the donor may have more control over directing who may possess or enjoy the art following the transfer. A purpose trust is a trust that is designed to hold assets for a specific purpose, rather than for the benefit of individual beneficiaries. A gratuitous transfer of an art collection to a non-charitable purpose trust would be a gift if the transfer is a completed gift, but retained powers may cause estate tax inclusion. In addition to transferring artwork to an irrevocable trust, which is a completed gift for gift tax purposes, individuals may also transfer artwork to a revocable trust. A revocable trust functions as a “will substitute” in that the trust provides direction for the distribution of the artwork upon the owner’s death. Transfers to a revocable trust are not a gift because the transferor retains full domination and control over the trust assets during the transferor’s lifetime. Importantly, assets held in a revocable trust avoid a court-supervised “probate” procedure upon the transferor’s death, which can be time-consuming and is generally available for public viewing.