미술품 위조 및 위조 미술품 매매에서 미술작가 권리 보호를 위한 법적 고찰

Abstract

The art market has suffered from the issue of forgery for hundreds of years, which is still continued as a problem today. Recently, not only the works by deceased artists, but also the works by living artists are even forged, so the forgery is not blowing over at all. The artworks have a characteristic in which the price is continuously rising as the artists’ reputation is improved. This characteristic is completely different from the one of general works or material things in which the price noticeably drops after the initial sale. Because of this characteristic, the forgery is continuously performed by the people who want to easily make huge profits. Most of the researches on forged artworks are focusing on the possibility of imposing the responsibility for security or illegal act, or the possibility of giving criminal punishment as the measures for protecting consumers among the parties of dealing forged artworks. However, there have been almost no researches for artists even though they are the biggest victims of forgery. The forgery is a serious problem enough to make the relevant artist announce the end of career as an artist. The huge profits generated through the sale of forged artworks are vested in the forgers while the artists are placed in an irrational situation of endlessly receiving a doubt about forgery on their own works. In addition, there should be a research for protecting the artists’ rights and securing the distribution order of art market by stopping the continuous transaction of forged artworks in case when the people who did not actually forge the artworks have made huge profits from selling them. This study analyzed and organized the types of forgery, and then examined which rights of artists would be violated according to the types. There are three types of forgery such as reproduction, reassembly, and creative forgery. The reproduction could violate the author’s moral right while the reassembly or creative forgery could violate the personality right. In case when the authors’ moral right or personality right of artists is violated by forgery, there are means of relief such as a claim for damages, a right to injunction, and a right to scrap. To fully protect the artists’ rights in this case, this study argued that the protection period of rights should be permanent exceeding a certain period of time after the matter, and then presented the characteristics of artworks as its grounds. It should not be limited to a certain period of time after the matter just as the current legislation or theories. Lastly, after revealing that the artists’ rights would be also violated in case when the people who actually did not forge the works were trading them by holding the ownership of arts of forgery, this study examined the importance of a right to scrap as the means of relieving the violation of rights.