Re: ownership of original oil painting

On Thu, 9 Mar 2000, Eric Stevens <estevens[_at_]poynerspruill.com> wrote:
>
> I have an question about the ownership of an original artwork. Client
> (who was not advised by me at the time) entered oral contract with
> artist to prepare artwork for the cover of inaugural issue of client's
> magazine. Client had specific idea about what he wanted the artwork
> to depict and specifically directed the artist to comply with his
> wishes. Artist prepared an original oil painting, prints of which
> were then used for the magazine cover.

Sounds like artist was a contractor rather than employee.

> It was clearly understood that Client was buying the right to copy
> the work for use on the cover of magazines, distribution on flyers,
> posting on the website, etc. What was never addressed was the
> ownership of the original oil painting. It is not a work for hire
> because there was no written agreement.

No; it is not a "work for hire" because it is not a "work for hire" under the definition in s. 101 of the Copyright Act... you cannot affect whether something is a "work for hire" by written agreement.

> What arguments, if any, can my client make that he is entitled to
> possession of the original artwork? Would it make any difference if
> his input into the creation of the painting was sufficient to make
> him a joint author?

You have a 17 USC s. 202 problem. The Copyright Act says ownership in the copyright and ownership in the object are separate subjects and nothing is implied. If the facts support the latter that would certainly support a finding of joint ownership of copyright but not the item itself.

To me, in the absence of a written agreement, your best argument is implied contract, depending on any favorable support from the facts and circumstances surrounding the making of the deal.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
734 668 4646 v  734 663 9361 f
business, technology, entertainment
and new media law
<shepherd[_at_]arborlaw.com>