Re: Re: copyrghts in famous painting

Assuming for the sake of argument, it's NOT a WMFH, then what?

Under 17 U.S.C. 202, which only applies to post-1978 works, transfer of the copy does not include transfer of the copyright. But under the 1909 act, things were different.

Let's say painter sold painting to patron (client), and the painting had not been published at the time of the sale (the hypothetical is not clear about when the sale took place, either with respect to absolute dates or in relation to critical events). Under the so-called "Pushman" doctrine, there was an implied conveyance of the common law copyright as well, although some states passed statutes limiting the application of the Pushman doctrine, which the 1976 act abrogated (but only prospectively, not retroactively).

Statutory copyright would arise upon either publication with notice or registration; publication without notice would inject the work into the public domain. In whom would any statutory copyright vest? In the transferee of the common law copyright, not the author. The assignee of the common law copyright might claim statutory copyright by virtue of the assignment. American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), and when statutory copyright preempted common law copyright on the effective date of the 1976 act, by operation of federal law, the assignee would be vested with the statutory copyright.

Jere Webb wasn't missing any issues, so much as facts upon which certain issues turn. Yes, it could be a morass. The issue of publication is thorny, because usually for publication to take place in order to vest or divest a work of copyright, such alleged publication must take place with the common law copyright owner's permission (whether that's the author or assignee). Such scenarios also make issue of recordation of transfers a headache, too.

At 08:15 AM 1/19/2006, you wrote:
>LOTS of complicated issues here.
>"Probably a WMFH"? Wasn't WMFH mostly based on caselaw under the 1909
>act? That could be complex. And of course if it wasn't a WMFH, and
>there was no transfer of copyright than rights would still be with the
>artist or their Heirs and Assignees, not the purchaser.
>What counted as publication under the 1909 act is similarly complex, and
>would help to determine whether the work was published without notice.
>Might copyright have been restored if the artist was foreign?
>
>Depending on the date, it wouldn't surprise me at all if nobody was
>keeping track of copyright status. Even professionals didn't used to
>worry as much about copyright as they do now. Pretty much the only
>thing that is clear is that purchase of the painting does not transfer
>any copyright to the purchaser without an agreement to that effect,
>although I suspect that there would be a strong implied license to
>publicly display it.
>
>-----Original Message-----
>From: CNI-COPYRIGHT -- Copyright & Intellectual Property
>[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Webb, Jere
>Sent: Wednesday, January 18, 2006 5:20 PM
>To: CNI-COPYRIGHT -- Copyright & Intellectual Property
>Subject: [CNI-(C)] Re: copyrghts in famous painting
>
>Client buys famous painting covered by the 1909 act. The painting was
>probably a work made for hire. It was hung in a private residence for
>years and later in a museum. It was widely copied and distributed in
>the form of posters, photographs, post cards, etc. It was not ever
>registered, no evidence of copyright notice on reproductions. I am
>trying to analyze who owns the copyrights. This artist made his living
>selling paintings, so it doesn't make sense to me that he or whomever
>commissioned the work let the copyrights slip out the door by not
>affixing appropriate copyright notices upon publication.
>
>There must be something I am missing here. Is there an argument that
>taking a photograph of the work and distributing it is not a publication
>of painting? If widely published without notice, the copyrights went
>out the window. If not published, we are, I believe, into a morass of
>common law copyright under state law, with a split in authority as to
>whether copyrights transfer with a painting and as what constitutes
>publication of a painting where displayed in a museum or otherwise.
>Thoughts?
>
>
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S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax Received on Thu Jan 26 2006 - 01:30:00 GMT