Re: Greetings, I also am not a lawyer

On Friday, October 24, 1997, David F. Crosby <dfc[_at_]lappinkusmer.com> wrote:
>
> 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.

Vance, David: wait a second, what happened to the First Sale Doctrine? Section 109(c) expressly permits the owner of a legitimate copy (in this case the museum, which owns the "original" copy) to publicly display it, notwithstanding 106(5).

Christopher Pesce
pesce[_at_]seanet.com Received on Sat Oct 25 1997 - 17:08:11 GMT