Re: Greetings, I also am not a lawyer

On 10/23/97, Vance R Koven <vrkoven[_at_]world.std.com> wrote:
>
> On Wed, 22 Oct 1997 Robert Panzer <bigbusie[_at_]aol.com> wrote:
> >
> > Here is an example. An artist creates a work in say, 1980. A
> > reproduction quality transparency is made by the artist at that time.
> > The work is sold by the artist to a collector. 17 years later, the
> > collector dies and, by will, the work is given to a museum. The artist,
> > still living (not that this necessarily makes any difference), then
> > receives a request from a publisher to reproduce the work on the cover
> > of a math textbook. The artist is delighted; the idea of her art (in
> > this case a work with a large number 2 in it) appearing in a non-art
> > context is wonderful to her. It will expose the work to an audience in
> > a new way. Unfortunately, her transparency has lost its quality in the
> > 17 years since it was taken. So she refers the publisher to the museum
> > with the idea that she will license the publisher reproduction rights
> > and the museum will provide the image. She figures that the museum will
> > charge some sort of rental fee which would cover the museum's costs and
> > perhaps a nominal profit.
> >
> > Three scenarios can then occur. The first, and best for her, the
> > copyright holder, but not the most common result, is that the museum
> > does just what the artist hoped for and everybody wins. The second, and
> > most lilkely, is that the museum provides a high quality image to the
> > publisher but charges a fee (in the form of one charge or separate
> > rental and rights fees) that is often close to, at, or over the
> > publisher's budget for the use (let us presume that the publisher's
> > budget is somewhere around industry standard). There is little or no
> > money left in the budget for the artist, the creator and rights holder.
> > The third scenario, one not as uncommon as you might think, is that the
> > museum refuses to provide the image, and for any number of reasons. Two
> > common reasons: the museum deems such use "inappropriate" and, the
> > reproduction would be in competition with a use the museum itself may
> > want to make of the work. Yet aren't these the very rights reserved to
> > copyright holders? End result, the artist loses control of rights,
> > potential income and exposure.
>
> An interesting scenario, and indeed probably not so rare. My question
> is what rights does the museum think it got from the collector, and what
> rights did it actually get? Post-1978, when the artist retains copyright
> unless otherwise expressly agreed, I wonder if the museum didn't acquire
> only the right to keep the work in its basement until it comes to terms
> over public display. That could amount to a good deal more leverage
> with the artist than she thought she had.

I agree with Vance, Sec. 106(5) provides ... "in the case of ... pictorial, graphic or sculptural works, [the right] to display the copyrighted work publicly." Unless the sale to the collector included the display right and the display right was transferrable, the museum merely owns a copy of the work with limited ability to display it publicly. In addition, I suspect, but I am not certain that the mere sale of a copy does not give rise to the transfer of any rights of the copyright bundle unless they are expressly transferred. In addition for rights under the 1976 Act, the author (and her heirs) still retain the right of termination between the 35th and 40th years under Sec. 203.

Regards,
David F. Crosby
dcrosby[_at_]lappinkusmer.com
dfcrosby[_at_]earthlink.net Received on Fri Oct 24 1997 - 12:41:46 GMT