Let's assume for the sake of argument that the proposed publisher is not a
museum (with which this query commenced) who might be able to afford all
this research on a piece by piece basis, but rather a company that creates
teaching tools, like boxed images for class study or images for display in
classroom, where perhaps thousands of images must now be cleared. The cost
of this research and fact-finding would be prohibitive. These companies
work on very small margins. Wouldn't the fact that they had been publishing
these images for a long time without receiving notification of potential
infringement speak in favor of the existence of an agreement between the
publisher and the artist (even if it wasn't documented in writing)?
From the beginning of teaching art history in classroom settings, providing visual resources without royalty was considered either an obligation of the artist and/or owner of the work, or a right of education in general. It seems as if today's rights holders do not distinguish any longer between commercial use of images and educational uses. The educational slide vendors hardly qualify as commercial vendors in the same way Corbus and other houses do; they don't vend to the commercial market.
Even though they are "commercial" in the sense that they produce a product and expect to make some kind of profit, I'd think that there is a strong fair use argument to make for them.
Robt Baron
robert[_at_]studiolo.org
At 07:23 PM 9/26/2002 -0700, Stephen Fishman wrote:
>--- Dave Green <dave[_at_]tech-esq.com> wrote:
>
> > Consequently, that left only five potential results:
> >
> >
> > (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.
>
>You can't confirm this at the LOC. The Copyright
>Office has on file thousands of NIEs, but these
>represent only a tiny fraction of all the foreign
>works that were restored. What you have to do is find
>out the work's publication history. The work would
>have had to be first published outside the U.S. and
>must still be under copyright in the foreign country
>for it's U.S. copyright to be restored. I'm not sure
>whether the foreign publication must comply with the
>U.S. definition or that of the foreign country.
>
> > (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.
>
>Only unpublished works created by authors who died
>before 1932 will enter the public domain on 1/1/03.
>The author of the work in question died in 1985. If
>it's an unpublished work, it receives a copyright
>terms of life plus 70 years, so the copyright wouldn't
>expire until 2056.
>
> (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.
> >
>Registration is not required for copyright protection
>for published or unpublished work. It's needed only to
>file a copyright infringement lawsuit--and only if the
>copyright owner is American.
>
>
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