Re: Fine Art Reproductions

On 4/14/99, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> The second difference is: what does it mean to say that a painting
> is in the public domain? Under U.S. law, prior to 1978, duration
> was measured from the date of publication, not the date of creation.
> Publication was defined as the sale or offer to sell one or more
> copies to members of the general public. Thus, the sale of an
> original painting to a museum or gallery constituted a "publication"
> of that painting. An "unpublished" manuscript in a library, however,
> could (in theory) be protected perpetually unless and until it was
> published with authorization.

It would be interesting to see a survey of the case law from the different circuits on this point; I don't think Tyler's response would have been universally accepted. There was a line of cases in the First Circuit, for example, that related publication of an original artwork to public *display* (a proposition the new law explicitly rejects). The sale of the single exemplar of the work to a single museum strikes me as not a good test for publication, unless the work were offered to the world and the museum was the successful bidder. Perhaps it's the old securities lawyer in me looking at the "public offering" language of the Securities Act, but publication for copyright purposes has something of the same smack of making the thing available to the world (regardless of the number of actual takers) rather than a selected and limited audience.

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