Re: Artists, Museums & Copyright??

See original question below. A very interesting question, fraught with difficulties. I can't say I know all of the ins and outs under the 1909 Act; but under the 1976 Act (which might be persuasive), a transfer of copyright must be in writing to be valid. However, an author or artist can grant a non-exclusive license orally or by conduct. The problem here is that if the heirs are as aggressive as you say, it is likely that the museum would have to go to court with evidence of the conduct of the artist in order to establish its implied license. The documentary evidence might be sufficient, but some testimony would probably be needed. And, of course, the implied nonexclusive license would have to be perpetual in order to defeat the rights of the current copyright holder.

If the work was published without copyright notice [before Mar. 1, 1989], and with the permission of the copyright owner, then it is now in the public domain. That might be the museum's best shot at getting out of a legal action quickly, or give them some leverage for a favorable settlement. Again though, they would need some evidence of the artist's permission (implied or express) to make this work.

If the artist was French, and the work was first published in France, then Section 104A "restores" the copyright if it was lost in the U.S. due to failure to follow formalities (such as notice and renewal registration), rather than expiration. But if the work was first published in the U.S. (or published in the U.S. within 30 days of its publication elsewhere), then Section 104A does not apply.

As for display, no permission is needed. The museum falls within the first-sale doctrine [Section 109(c)], which permits the public display of any tangible copy of the work (including the original) that is lawfully owned by the museum, to people who are present "at the place where the copy is located."

Tyler T. Ochoa
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)
tochoa[_at_]law.whittier.edu

>>> csundt[_at_]OREGON.UOREGON.EDU 09/20/02 09:31AM >>>
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 csundt[_at_]oregon.uoregon.edu
http://libweb.uoregon.edu/aaa/vrc/VRCinfo.html Copyright & Art Issues: http://oregon.uoregon.edu/~csundt/cweb.htm Received on Mon Sep 23 2002 - 18:05:04 GMT