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. 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.
> 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? I would appreciate the benefit of your collective
> wisdom.

You may wish to look at COMMUNITY FOR CREATIVE NON-VIOLENCE v. REID, 490 U.S. 730 (1989), which is informative not so much in its holding as in the reasoning for the holding. It measures all sorts of factors in deciding that the work was not one made for hire which sound very similar to the your situation. That you also have the complication of having no written agreement would only be one additional factor against you, unfortunately. On the other hand, you didn't mention who has possession of the painting. If your client does, he may be able to argue that the painting was sold to him outright, in which case the line of cases cited by and stemming from Pushman v. New York Graphic Society, 287 N.Y. 302, 39 N.E. 2d 249 (1942) might be probative. These cases look at the opposite question -- whether the sale of a painting carries with it the right of reproduction.

Hope this helps somewhat.

-David

David R. Hale, Esq.
Astrachan, Gunst, Goldman & Thomas, P.C. 20 S. Charles Street, 6th Floor
Baltimore, Maryland 21201
(410) 783-3539
(410) 783-3530 (facsimile)
dhale[_at_]aggt.com

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