Re: derivative work

On 1/27/00, Calle Ostergaard <info[_at_]troll-company.dk> wrote:
>
> Can anyone explain to me the difference between a "copy" of an original
> work and a derivative work -- in case of for instance a sculpture?
>
> Will it be sufficient to change minor details in the original work
> or does the derivative work have to appear clearly different from
> the original? -- e.g. if I paint new eyebrow and/or moustache on
> Donald Duck eventually give him a new shirt -- have I then created
> a derivative work?

In another nuance, works of art can be either unique (there's only one) or multiples. An etching that might be made in an edition of 100 is a multiple. The "original," if any, is the plate. My understanding is that it's an infringement for a third party to aquire the plate and make more prints of the etching. A typical way of "canceling" the plate is to scratch a diagonal line across it, thus alerting buyers of any additional run of prints that these were not made under the authority of the artist. In theory, the artists should destroy the plate, but may want to retain it for study purposes. Or it may become an archival item. If the plate from a previously unknown Rembrandt etching was discovered, it would end up in a museum, and prints might legitimately be made to see what they had looked like, especially if no copies of the prints made by Rembrandt himself still existed.

Some years ago, the estate of Kathe Kollwitz sold prints made from canceled lithographic stones -- one could see the diagonal cancelllation. The prints didn't look good, because quality falls off if one makes too many prints from a lithogrpahic stone. In this case, nobody would have had standing to sue the estate for damaging the reputation of the artist by circulating inferior work. And the defense would have been it was perfectly clear that that these were post-hoc prints made from a canceled stone... no deceit was involved (at least for those who understood).

In sculpture, bronze castings are an example of multiples. The "original" is the cast. A museum might sell plaster casts (multiples) of, say, a piece of Greek sculpture in their collection. As the curator of a second museum you may not, while a piece is in your possession (perhaps you borrowed it for a show), make your own casts and sell your own copies. The great deterrent in this case is loss of reputation for transgressors. No museum would lend work to a museum that transgressed or condoned transgressions. If you watch major museum shows where work has been borrowed from many museums, they almost always forbid museum visitors to photograph the works. This is to protect the museums that actually own the borrowed works, and may want to sell their own photos.

Case law is probably thin, although transgressions abound. As the executrix of an artist's estate, I know a slide company selling slides of the artist's work that were taken without my knowledge at an outdoor exhibition in another city. No consent was sought, and I called this to the attention of the owner of the slide company when I met him at a professional meeting. He had "a policy" of never paying royalties, although he admitted the infringement and offered to stop selling the slides if I wished. I let it go, because the amount of money involved for the estate was trivial, maybe $100 per year. Assuming he does this to every living artist or their estates, it may be quite profitable for him. Yet he won't be sued and you won't get your case law.

If it should come to attention that vast amounts of money were involved in unpaid slide royalties, I doubt that even an artists association -- say, Artists Equity -- would find it feasible to bring a class action. It would not have wide support of their membership because not all artists have slides of their work sold by slide companies. A more likely course of action (here I'm relying on what I've seen myself) is that the artists association might propose legislation to protect artists, assuming a friendly legislator could be found. New York Artists Equity has put through a number of interesting laws that usually never get tested because so few attorneys are aware of them. One, for example, says that a museum or gallery has a fiduciary responsibility to work borrowed from artists. This bears on the amount of care required, and on the right to sue for more than the stated price of the work if it should be lost, stolen, or damaged while in the care of a museum. In effect, it says a work of art is not a case of mayonaisse, and we need to look to more than just the uniform commercial code. It helped me in getting a case settled against a museum's insurance company, but so far as I know has never gone to trial and therefore has never been reduced to case law.

On the ability to actually enforce an entitlement to permissions and royalties, extremely famous artists are in another category and the estate of T. S. Eliot is unique. Their income has been reported as a million dollars a year, probably mostly from Cats. Faber is in a position to be extremely assertive about permission payments, which has caused great resentment from academics. A recent letter from Faber was enough to frighten an English hobbyist into removing an illicit web site that posted Eliot's poems. Books on academic subjects bring in very little money, an author may perceive himself to be "helping" the reputation of the subject, and it indeed can be a hardship to be asked to pay out more in permissions than is likely to be earned. I mention this as an area where resentment is high, lawsuits are few, and one doesn't see all the issues reflected in case law.

pat sloane
<patsloane[_at_]aol.com> Received on Sun Jan 30 2000 - 08:56:42 GMT