> Eve Sinaiko wrote: > "One cannot buy the rights to a work by buying the work (which is why MOMA doesn't > own the copyrights to Matisse's paintings, for example)."
Peter writes: > What Eve says is correct for published works, but the question of Matisse paintings > purchased by MoMA is theoretically more problematic. Remember the Pushman Doctrine, > which established that the transfer of unpublished works by an artist in New York prior to > 1966 transferred to the purchaser the copyright in those works unless the copyright in the > works was expressly reserved by the artist. > > It is quite likely that MoMA acquired the copyright in some of the artworks it purchased > prior to 1966, when the Pushman Doctrine was reversed by the state legislature. It is > possible that the common law of other states might have kept the Pushman Doctrine in place > in those states until 1978, when unpublished art work was first protected by Federal > copyright. > > Whether anyone wants to fight with artists and their estates over copyright is another > matter. Very true! Still, I this rare situation doesn't apply to the example I was addressing: the all-too-common instance of someone acquiring a work and then improperly (indeed, illegally) asserting ownership of its copyright when copyright has expired. This is a version of what Judge Posner calls copyright misuse; others call it copyright abuse. My own name for it is theft from the public domain. The example Peter explores is mostly a matter between the Matisse estate and MOMA; it needn't worry users of images too much, as long as we know that Matisse remains in copyright until 2024 and that, as a general rule, we should seek permission from his estate, not the museum. Beyond that we have to rely on the estate to 'fess up honestly if it happens to have assigned or sold or otherwise lost the rights to an individual work. If we have reason to doubt the probity of a rights holder of record; this sometimes happens when two children of an artist are heirs of different clusters of his or her work, for example. It's difficult for publishers and museums find a balance between the specifics of the law and general, reliable rules that provide clarity and security. Reliable rules of thumb are essential to running a business practically; by definition they do not encompass all possible exceptions. Few of us (individuals or institutions) have the time or money for deep research into the copyright status of individual works (in most instances). Most museums don't even have counsel on retainer, much less on staff. So until recently the in-house rules at presses and museums usually erred on the side of a conservative, better-safe-than-sorry interpretation of copyright law. But this has led to an immense amount of rights clearance (and fees! and restrictive terms of use!) for works that in fact have no copyright (such as a postcard from 1895) and an enormous increase in paperwork for everyone. To be sure, US copyright law is full of minute complexities: some published works have lost their copyright well before the Death + 70 years expiry date because a rights holder failed to reregister copyright or omitted a notice. Other works that should have entered the public domain by now may have an extended term because of technicalities such as the one Peter points to above (because a corporate copyright generally has a longer term than that of an individual--as in the case of Harvard owning rights to some Dickinson poems). Nevertheless, we do need general rules of thumb and they need to be sensible and reliable in most cases. To put the matter bluntly: in my experience illegal assertion of copyright is *far* more common than instances of unintentional infringement caused by a rare exception to the general rules of copyright term (such as incorrectly assuming that all of Dickinson's poems are in the public domain). Unfortunately, it's easier for Harvard to sue for infringement than it is for the public domain to sue for theft. No huge settlements attach to aggressively pushing back against improper copyright assertions. I sometimes think the public domain should incorporate so as to improve its legal standing. (OK, that last bit was a joke.) Regards, Eve Sinaiko NYC
