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Ask Lola's Lawyer

by Adam Bobker


Image: Uncovered portrait of the Queen painted by Gary Frost

Buried Treasures

Dear Lola,

I painted this portrait five years ago and then re-stretched the canvas and painted a landscape over top. Last fall I sold the canvas to a baseball teammate of mine. He went and stripped the landscape to reveal the portrait. Now he's planning to sell it at auction. What legal action can I take, and is there a way to prevent this from happening again? With the media attention, he stands to make out like a bandit.

Gary Frost

Dear Gary,

Now that I've stopped wondering how it is that HRH Elizabeth II (or someone who looks just like her) came to be posing for you, I'll give you some ideas on what to do. First of all, you sold the canvas and everything painted on it, so your teammate owns the landscape as well as the portrait underneath. But that doesn't have to be the end of the story. You have likely retained the copyright so you could take legal action if your teammate decided to turn a profit on your Queen painting through reprints. A Judge would likely stop him from reproducing the image and order that he cough up any money he made from sales. Another set of rights an artist has in their work is moral rights, which include the right to the integrity of the work, and the right to be associated with the work. You could prevent your teammate from taking your Queen to auction by alleging a violation of your moral rights occurred when he modified the painting. Because he scraped away the landscape without your permission, you could argue that he has prejudiced your honour and reputation. You might remember the Michael Snow case. Snow managed to get the Eaton Centre to take red ribbons off his geese based on a violation of his moral rights. You may even be able to get Elizabeth II covered back up if you really want to. However, over exposure does not seem to be your main concern, nor does anonymity, considering the venue you have chosen to seek advice. As for avoiding this sort of situation in the future, how about painting only on fresh canvas from now on? As it stands, every Gary Frost landscape already out there is at risk of being "stripped." Lastly, you undoubtedly realize that given the subject of your painting, many, including perhaps the Judge who hears your case, will find your portrait distasteful. We all have the right to freely express ourselves, even our bad taste. But Courts have refused to recognize and enforce the rights of artists in obscene works that cause harm to people or offend community standards. Your image will undoubtedly colour the Judge's mind.


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Disclaimer: THIS COLUMN IS WRITTEN FOR ENTERTAINMENT ONLY. These situations are fictitious. Any similarity to any one you know of is a coincidence. Every case is different. These are NOT legal opinions. YOU rely on the ADVICE contained in the answers at YOUR OWN PERIL. IF YOU HAVE A REAL LEGAL PROBLEM, CALL A LAWYER. Bobker really is a lawyer.

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