Lu, thank you for the kind words. Unfortunately art publication is too messy an issue for me to be able to simplify it. And before anyone actually acted on publication status, they would want to consult with a good lawyer, because the rules vary by court district, international issues can complicate matters (i.e., a work by a French artist might be PD in the US but copyrighted in France. If someone can access the work in France, you might be liable, even if your server is in the U.S.), and most of all, most artists don't realize that they may have given away or lost their rights. Since modern law is so different than the 1909 law, I worry that judges, too, might ignore the difference.
If, however, you are really interested in tracking publication status, just to go chapter 5 on art in Stephen Fishman's really useful book "The Public Domain: How to find and use copyright-free writings, music, art and more." A new edition was published today (according to Amazon.) If you are a real glutton for punishment, his legal text "Copyright and the Public Domain" is also excellent. Peter -----Original Message----- From: mcn-l-bounces at mcn.edu [mailto:[email protected]] On Behalf Of Harper, Lucy Sent: Tuesday, May 04, 2010 9:22 AM To: Museum Computer Network Listserv Subject: Re: [MCN-L] copyright question As an interested reader, I'd like to second Deb's thanks to Peter. I have found his clarity about what constitutes publication very helpful..and wonder whether he would be interested in charting the questions that arise in the course of determining art/image publication the way he has charted print publication...It would be extremely useful for those of us who are faced with determining copyright status of art objects in our collection. Lu Harper Memorial Art Gallery of the University of Rochester lharper at mag.rochester.edu http://mag.rochester.edu -----Original Message----- From: mcn-l-bounces at mcn.edu [mailto:[email protected]] On Behalf Of Deborah Wythe Sent: Tuesday, May 04, 2010 9:16 AM To: mcn-l at mcn.edu Subject: Re: [MCN-L] copyright question Hi Peter, Not that most of us have the time to do this for every work in our collections, but I have to say that digging in and doing the research on this work has been fun, especially for a former archivist who now deals in things digital rather than analog. I've found a good deal of information in the Archives of American Art, including a public exhibition prior to our purchase of the work and indication that the artist had a relationship with the gallery that sold us the work, so it was likely a "private sale" as you indicated below. And yes, there is an estate and a licensing agency out there, so we'll have to be very diligent about our documentation. I would love to blog about this project, but not sure if that's going to be possible. Thanks for the advice and the handholding! It's easier to feel comfortable with accepting risk when someone knowledgble has weighed in! Deb Wythe deborahwythe at hotmail.com > From: pbh6 at cornell.edu > To: mcn-l at mcn.edu > Date: Mon, 3 May 2010 15:17:26 -0400 > Subject: Re: [MCN-L] copyright question > > It sounds, Deb, like you might be in the clear. I am going to assume that New York Graphic Society (the defendant in the Pushman case, btw) registered its work as an "art reproduction," a category of work covered by the copyright law and with some basis in case law (i.e., Alfred Bell v. Catalda Fine Arts, which found that mezzotint engravings of public domain works had enough originality in their own right to be copyrighted). Publication of the "art reproduction" in 1940 would also have published the original work (if it hadn't been published before) - assuming, of course that NYGS had the copyright owner's permission to reproduce the painting. If the original work did not have a copyright notice on it, it would have entered the public domain. (NYGS's notice would only have applied to its reproduction.) If the original did have a copyright notice, then it would have had to have been registered and renewed. You indicate that there is no renewal for the painting - only fo > r the derivative work. > > I think there is likely to be a strong public domain case for the painting. But again, if the artist's estate disagrees, they might be willing to take it to court. And a judge might decide to rule based on the "fairness" of current law rather than the case law as extant under the 1909 Copyright Act. > > I once investigated the copyright status of "American Gothic," and came to a similar strong conclusion that the original painting is in the public domain, in spite of what the Chicago Art Institute and VAGA have to say. VAGA does administer the publicity rights of Grant Woods's sister, Nan Woods Graham, who was the model for the woman in the painting. Anyone wanting to use the public domain painting in a commercial setting still needs to take into account her publicity rights. So don't just think about copyright. > > Peter > > -----Original Message----- > From: mcn-l-bounces at mcn.edu [mailto:mcn-l-bounces at mcn.edu] On Behalf Of Deborah Wythe > Sent: Monday, May 03, 2010 2:49 PM > To: mcn-l at mcn.edu > Subject: Re: [MCN-L] copyright question > > > Thanks, Peter. as always, you've covered the bases thoroughly and clearly. Would that copyright itself was that clear! Looks like my next step is to try to research the provenance more deeply. I know where we acquired the painting, but not whether the original sale was from the artist to that gallery. > The 1940 registration was not in the name of the artist, but of the New York Graphic Society, a print company with a "Living American Artists" series. > > Best, > Deb > > deborahwythe at hotmail.com > > > > > > From: pbh6 at cornell.edu > > To: mcn-l at mcn.edu; musip at yahoogroups.com > > Date: Mon, 3 May 2010 14:09:45 -0400 > > Subject: Re: [MCN-L] copyright question > > > > Deb, it sounds like what you are asking is when was this painting published for copyright purposes. That, as you know, is often a very difficult question to answer. There are lots of possibilities: > > > > 1. Did the artist offer the painting for sale to the public in 1928? If she did, and there is no copyright notice on the painting, it entered the public domain at that time. > > 2. If there was a private sale, the party purchasing the painting most likely acquired copyright in the painting (under the Pushman Doctrine), unless there was a clause to the contrary. If the copyright owner then put the work on public display and did not restrict the public from making copies of it, it entered the public domain. > > 3. Did the 1938 appearance in the journals constitute first publication? Perhaps - if the images appeared with the permission of the copyright owner. Unauthorized publication does not affect copyright status. (This, btw, is why "Happy Birthday" is supposed to be still protected by copyright. Earlier publications of the song were unauthorized.) > > 4. Was the 1940 registration in the name of the artist, or was it a registration to protect the print made from the painting? If the latter, then the publication of the derivative work would have published the original work as well. Failure to separately renew copyright in the original work would have placed it in the public domain. > > > > My guess is that the painting, like probably 90% of the pre-1960 artwork in American museums, is in the public domain. But you also need to think about risk assessment. Does the artist's estate believe in asserting copyright, even when none exists? Is it important enough to you to take them on? > > > > Peter > > > > Peter B. Hirtle > > Senior Policy Advisor > > Scholarly Resources and Special Collections > > Cornell University Library > > 221 Olin Library > > Ithaca, NY 14853 > > mailto:peter.hirtle at cornell.edu > > t. 607.255-4033 > > f. 607.255-2493 > > http://vivo.cornell.edu/individual/vivo/individual23436 > > > > > > > > -----Original Message----- > > From: mcn-l-bounces at mcn.edu [mailto:mcn-l-bounces at mcn.edu] On Behalf Of Deborah Wythe > > Sent: Monday, May 03, 2010 12:17 PM > > To: musip at yahoogroups.com; mcn-l at mcn.edu > > Subject: [MCN-L] copyright question > > > > > > Here's a question for the copyright mavens among us: > > > > A painting, created in 1928, was published as an image without copyright notice in 1938 in articles in Art News and Art Digest. > > > > A print of the work was published and copyright registered in 1940 and renewed in 1968. > > > > In the former case, the work is not under copyright. > > In the latter, it is protected until 95 years after 1940, or 2035. > > (I'm basing this on Peter Hirtle's http://www.copyright.cornell.edu/resources/publicdomain.cfm) > > > > Is the painting a different work? > > Or is its (c) status affected by the later publication? > > > > Thanks for your input! > > Deb Wythe > > Brooklyn Museum > > > > deborahwythe at hotmail.com > > > > > > > > _________________________________________________________________ > > Hotmail is redefining busy with tools for the New Busy. Get more from your inbox. > > http://www.windowslive.com/campaign/thenewbusy?ocid=PID28326::T:WLMTAGL: ON:WL:en-US:WM_HMP:042010_2 > > _______________________________________________ > > You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) > > > > To post to this list, send messages to: mcn-l at mcn.edu > > > > To unsubscribe or change mcn-l delivery options visit: > > http://toronto.mediatrope.com/mailman/listinfo/mcn-l > > > > The MCN-L archives can be found at: > > http://toronto.mediatrope.com/pipermail/mcn-l/ > > _______________________________________________ > > You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) > > > > To post to this list, send messages to: mcn-l at mcn.edu > > > > To unsubscribe or change mcn-l delivery options visit: > > http://toronto.mediatrope.com/mailman/listinfo/mcn-l > > > > The MCN-L archives can be found at: > > http://toronto.mediatrope.com/pipermail/mcn-l/ > > _________________________________________________________________ > Hotmail is redefining busy with tools for the New Busy. Get more from your inbox. > http://www.windowslive.com/campaign/thenewbusy?ocid=PID28326::T:WLMTAGL: ON:WL:en-US:WM_HMP:042010_2 > _______________________________________________ > You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) > > To post to this list, send messages to: mcn-l at mcn.edu > > To unsubscribe or change mcn-l delivery options visit: > http://toronto.mediatrope.com/mailman/listinfo/mcn-l > > The MCN-L archives can be found at: > http://toronto.mediatrope.com/pipermail/mcn-l/ > _______________________________________________ > You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) > > To post to this list, send messages to: mcn-l at mcn.edu > > To unsubscribe or change mcn-l delivery options visit: > http://toronto.mediatrope.com/mailman/listinfo/mcn-l > > The MCN-L archives can be found at: > http://toronto.mediatrope.com/pipermail/mcn-l/ _________________________________________________________________ The New Busy is not the too busy. Combine all your e-mail accounts with Hotmail. http://www.windowslive.com/campaign/thenewbusy?tile=multiaccount&ocid=PI D28326::T:WLMTAGL:ON:WL:en-US:WM_HMP:042010_4 _______________________________________________ You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) To post to this list, send messages to: mcn-l at mcn.edu To unsubscribe or change mcn-l delivery options visit: http://toronto.mediatrope.com/mailman/listinfo/mcn-l The MCN-L archives can be found at: http://toronto.mediatrope.com/pipermail/mcn-l/ _______________________________________________ You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) To post to this list, send messages to: mcn-l at mcn.edu To unsubscribe or change mcn-l delivery options visit: http://toronto.mediatrope.com/mailman/listinfo/mcn-l The MCN-L archives can be found at: http://toronto.mediatrope.com/pipermail/mcn-l/
