RE: Artists, Museums & Copyright??

Chris Mohr wrote

"Moreover, under the 1909 Act, the transfer of the physical copy may have transferred the common-law copyright as well."

I agree with Chris' comments but with the following points. While Chris is correct that under the 1909 Act, federal copyright may have been lost absent either registration or prior publication with proper notice, the effect of the 1976 Act was to preempt common law copyright. Consequently, that left only five potential results:

(1) The work fell into the public domain due to publication without
proper notice under the former 1909 Act and was not restored under subsequent revisions/Acts.
(2) The work was a foreign work that fell into the public domain due to
publication without proper notification, and may have been restored under the recent restoration provisions. This can be confirmed online at the LOC.
(3) The work was timely registered prior to publication and timely
renewed and/or converted to the new term upon the effective date of the 1976 Act and later extension.
(4) The original and subsequent display/uses of the work somehow did not
constitute general publication under the 1909 or 1976 Acts, the work remains unpublished, and will fall into the public domain at the end of this year unless published/registered, thereby extending its copyright.
(5) The original display of the work somehow did not constitute general
publication under the 1909 or 1976 Acts, the work has since been published under later Acts with proper registration or notice (or no notice if published after 1989), and remains under copyright for the current statutory term.

The burden seems to lie on the heirs of the artist to prove that the work has not fallen into the public domain and that such copyright did not pass to the museum under the Act applicable at the time of transfer. The proof lies in their ability to secure and defend a copyright registration. Without such registration, they are unable to maintain an infringement suit and therefore have no claim of infringement in the United States. The complete analysis may still be worthwhile for resolving copyright ownership in foreign jurisdictions.

Dave Green
Senior Corporate Counsel, Corbis Received on Tue Sep 24 2002 - 06:14:56 GMT