Re: Artists, Museums & Copyright??

I had to research these issues with respect to an artist's estate that I once represented in a situation where the heirs were trying to make museums comply with minimum quality standards in their reproductions of the artist's work, as well as in monitoring quality standards for licensees of the museums. A rather different context, but the issues were the same.

Under the 1909 Act, with respect to a statutorily copyrighted work of art, transfer of the original transferred the copyright in it unless the parties agreed otherwise, which is the exact opposite of the rule under the 1976 Act. If the work had not been statutorily copyrighted (registered, proper notice affixed, etc.), then the common-law copyright would obtain, and the rules of transfer would depend on state law. I believe that the majority rule was that the common-law copyright would go with the original, but again one would have to check the state case law. Importantly, under both the federal and state analyses on transfer of copyright, one has to assess the local rules with respect to whether the retention of copyright agreement in a majority-rule situation, or the assignment of copyright in the minority-rule situation, had to be in writing. I believe in almost all cases the answer is yes, barring issues of estoppel, and so in that case the handshake agreement would be irrelevant.

Where the fun comes in is whether, if the museum did not register copyright in the work, the display constituted publication. If it did, and the copyright was not formalized, then it would have been lost both to the artist and to the museum, as a matter of federal law. Alas, as usual, the circuits were split on that point, which is why the 1976 Act came up with the fixed rule that display does not equal publication.

Again, one would have to investigate the case law in the federal circuit where the alleged publication would have taken place.

Vance

At 09:31 AM 9/20/02 -0700, Christine L. Sundt wrote, in part:
>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.?

Vance R. Koven, Senior Attorney
Comverse, Inc.
100 Quannapowitt Parkway
Wakefield, MA 01880 USA
+1 781-224-8523 (vox humana)
+1 781-224-8144 (fax mechanica) Received on Tue Sep 24 2002 - 18:02:54 GMT