Date: Tue, 24 Sep 2002 10:32:43 -0700Tyler T. Ochoa
From: Tyler Ochoa <[email protected]>
Subject: RE: Artists, Museums & Copyright??
To: Multiple recipients of list <[email protected]>
>>> >>>
Moreover, under the 1909 Act, the transfer of the physical copy may
have transferred the common-law copyright as well.
<<<<<
The leading case on that point is Pushman v. New York Graphic Society,
Inc., 287 N.Y. 302 (1942). The 1976 Act was drafted to overrule
Pushman, but for the most part the 1909 Act still applies to works
created before 1978, so this may work. However, Pushman was later
legislatively overruled in both N.Y. and California, so the answer will
depend on what state you're in, and when the transfer occurred. In
other words, you need a lawyer.
>>>>>
A lot depends on whether this work has a copyright notice, whether this
work was registered (and by whom), when the work was created, whether
the copyright was renewed, and whether
'display' was publication without notice under the '09 act (I don't
know the answer off the top of my head, but I'm sure there are those on
this list that do).
<<<<<
In most cases, artists failed to put copyright notice on their
paintings, because they weren't thinking about reproduction rights. The
question also made it seem unlikely that any copyright was registered in
the painting (but perhaps in some of the authorized reproductions that
the museum published).
The leading case on 'display' as a publication is American Tobacco Co.
v. Werckmeister, 207 U.S. 284 (1907), in which the Supreme Court held
that public display in a museum was not a publication, at least where
the museum prohibited copyring. However, it left open the possibility
that such display MIGHT be a publication if no effort was made to
prevent copying. That qualifier was overruled in the 1976 Act. [I am
aware of only one case in which the qualifier was relied upon, and in
that case photographs of the statue in question were also handed out to
the public.]
The application of copyright to visual art is often a bad fit, because
copyright law was originally written for books, not art. Anytime you
find something funny in copyright doctrine that doesn't seem to quite
fit the world of visual art, if you think about how it works for books,
it usually becomes understandable. That doesn't make things any easier
for the museum folks, however.
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
[email protected]
-----Original Message-----
From: [email protected] [mailto:[email protected]]
On Behalf Of Christine L. Sundt
Sent: Friday, September 20, 2002 12:32 PM
To: Multiple recipients of list
Subject: Artists, Museums & Copyright??
This is a scenario that reflects some copyright concerns of a large
group of
individuals and institutions that work with images of art:
In 1956 an artist gave a painting to a museum and over the years that
painting has been continuously displayed and published in the museum's
catalogs. The gift was not accompanied by any formal paperwork that
transferred copyright, but in the spirit of the times, this was
assumed.
The agreement between the artist and the museum was more or less
standard
practice for the time - a gentleman's handshake, a nod, or whatever,
in
place of a document that defined the understanding between the artist
as
copyright owner and the museum.
The artist died in 1985 and now his heirs manage his estate. The
heirs
are
aggressive about managing their father's rights as an artist and have
now
started tracking down the museums that own his works.
What is the legal status of the implied consent between the artist and
the
museum that occurred when the work was given to the museum? Does the
repeated display and publication that occurred in the past (during the
artist's lifetime) establish circumstantial evidence that there was
implied
consent on the part of the artist? Could one argue the implied
consent
of
transfer of copyright or, short of copyright, that the artist's
consent
allows the museum to continue to use the work in displays and
publications
without further compensation (royalties) paid to the artist's legal
heirs?
Finally, does 'publication' of art depend on having an artist's formal
consent to publication to be considered valid?
Would the facts produce different outcomes if the artist were
foreign-born,
let's say from France, rather than from the U.S.A.?
As always, the wisdom and insights of this group are greatly
appreciated.
Christine L. Sundt
Visual Resources Collection
Architecture & Allied Arts Library
Lawrence Hall, Room 300
5249 University of Oregon
Eugene, OR 97403-5249 - USA
Phone: 541-346-2209
FAX: 541-346-2205
[email protected]
http://libweb.uoregon.edu/aaa/vrc/VRCinfo.html
Copyright & Art Issues: http://oregon.uoregon.edu/~csundt/cweb.htm
Director of Image Resources & Copyright Management
The Israel Museum, Jerusalem www.imj.org.il
Board of Directors, the Museum Computer Network www.mcn.edu ---
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