RE: Artists, Museums & Copyright??

>>> chrismohr[_at_]sprintmail.com 09/23/02 03:38AM >>>
Moreover, under the 1909 Act, the transfer of the physical copy may have transferred the common-law copyright as well. <<<<<

The leading case on that point is Pushman v. New York Graphic Society, Inc., 287 N.Y. 302 (1942). The 1976 Act was drafted to overrule Pushman, but for the most part the 1909 Act still applies to works created before 1978, so this may work. However, Pushman was later legislatively overruled in both N.Y. and California, so the answer will depend on what state you're in, and when the transfer occurred. In other words, you need a lawyer.

>>>>>
A lot depends on whether this work has a copyright notice, whether this work was registered (and by whom), when the work was created, whether the copyright was renewed, and whether
'display' was publication without notice under the '09 act (I don't know the answer off the top of my head, but I'm sure there are those on this list that do).
<<<<<

In most cases, artists failed to put copyright notice on their paintings, because they weren't thinking about reproduction rights. The question also made it seem unlikely that any copyright was registered in the painting (but perhaps in some of the authorized reproductions that the museum published).

The leading case on 'display' as a publication is American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), in which the Supreme Court held that public display in a museum was not a publication, at least where the museum prohibited copyring. However, it left open the possibility that such display MIGHT be a publication if no effort was made to prevent copying. That qualifier was overruled in the 1976 Act. [I am aware of only one case in which the qualifier was relied upon, and in that case photographs of the statue in question were also handed out to the public.]

The application of copyright to visual art is often a bad fit, because copyright law was originally written for books, not art. Anytime you find something funny in copyright doctrine that doesn't seem to quite fit the world of visual art, if you think about how it works for books, it usually becomes understandable. That doesn't make things any easier for the museum folks, however.

-----Original Message-----
From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org]

On Behalf Of Christine L. Sundt
Sent: Friday, September 20, 2002 12:32 PM To: Multiple recipients of list
Subject: Artists, Museums & Copyright??

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

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 Received on Tue Sep 24 2002 - 17:34:55 GMT