Re: Greetings, I also am not a lawyer

On 10/25/97, Christopher Pesce <pesce[_at_]seanet.com> wrote:
>
> 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).

Yes, the museum does have a limited display right (the one I alluded to below) but note for example that 109(d) limits what the museum can do with it, such as loan it to another museum. So if the museum wants to put the work "on tour", it has to get permission.

On another note, could the copyright owner compel the owner of the copy to present the copy for copying? i.e. could I get an court order requiring the museum to provide access to the copy for copying - for a reasonable fee? An easement to the copyright property - the right (to access) to make copies of a copy owned by another?

Regards,
David F. Crosby
dcrosby[_at_]lappinkusmer.com
dfcrosby[_at_]earthlink.net Received on Mon Oct 27 1997 - 23:35:26 GMT