Although the specific rules differ from country to country, the generally gives the copyright owner the exclusive authority to control how original artworks or their copies are made available to the public—whether through sale, transfer of ownership, rental, lease, or lending. This right may be limited to fixed or tangible copies of the artwork, though some laws may extend this to digital copies as well.
In practice, the distribution right is generally limited to the first public release of an original work (for example, selling a painting) and the initial distribution of any authorized copy of the work (such as prints, photographs, postcards or posters). See our section below, “First Sale and Exhaustion of Rights”, for more details.
Artworks can circulate in different ways, both physically and online:
• physical distribution covers tangible copies—such as prints, books, catalogues, posters, or merchandise—sold through galleries or dealers, or directly by the artist;
• online circulation involves the sharing or licensing of artworks in digital form—whether digitized reproductions of physical works or works created natively in digital form, including through online galleries, marketplaces, or the like. Digital artworks may be associated with , but this does not in itself imply transferring copyright of the artwork. Furthermore, where circulation occurs online, this may fall under a separate right, the right of communication, rather than the distribution right. This distinction matters as the two rights raise different considerations. Explore our page on Communication to the Public.
Depending on the jurisdiction and the type of work, artists may manage permissions on circulation by themselves or by relying on to help track uses and collect royalties.
First Sale and Exhaustion of Rights
Under copyright law, the first sale of an artwork or its authorized copies must be made by—or with permission of—the copyright holder.
After the first legal sale, many countries apply what is known as the (also called the “”). This principle means that once the copyright owner has sold a specific item, or allowed it to be sold, their control over that particular physical item ends. The buyer is then free to resell or pass on that item without asking the copyright owner and without further authorization of the copyright owner subject to any applicable resale right or contractual restriction for instance.
Many artists do not realize, however, that exhaustion of rights applies only to the specific physical item that was sold. It does not affect the copyright. The artist still retains all economic rights, including control over reproductions, adaptations, and other uses of the work. This remains true unless those rights have been specifically licensed or transferred, or unless different rules apply in another country.
Countries handle exhaustion in different ways:
national exhaustion – a country considers distribution rights to be exhausted when the work has been sold for the first time within that country;
regional exhaustion – a country considers distribution rights to be exhausted when the work has been sold for the first time within a specific region (for example, within the European Union—a work first sold in France can be resold in Germany without further consent);
international exhaustion – a country considers distribution rights to be exhausted as soon as the work has been sold anywhere in the world.
These systems generally apply only to physical artworks—not to digital files or online uses.
Does Exhaustion Apply to Digital Copies?
Traditionally, exhaustion has been understood to apply only to tangible (physical) copies—works you can touch or hold.
Digital or online uses (like downloads, streaming, or making a file available on the web) are generally regulated under a different right: the right of communication to the public—the artist’s right to make the work available online.
According to widely accepted international copyright norms, the terms “copies” and “originals” in the distribution context generally refer to fixed, physical items—not digital files. As a result, many experts and courts find that exhaustion does not apply to digital items. Specific national laws may vary, but in many jurisdictions, this means you cannot freely resell or distribute a digital artwork in the same way you can a physical one. This is because reselling a digital file typically means making and sending a new copy of it, rather than passing along the same physical item, so the transaction can rather fall under the reproduction right, or the right of communication to the public described above, instead of the distribution right.
Image credit: zefart