Re: Publication (Was: Fine Art Reproductions)

On 04/15/99, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
>
> 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 An "unpublished" manuscript in a library, however,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).

Vance is correct that the definition of "publication" was not well-settled under the 1909 Act, and differed in different circuits. Some courts did indeed hold that a public display was a "publication," a position which, as he notes, is rejected under the 1976 Act. But certainly a sale or an offer to sell one or more copies (including the original) to a member of the general public was a publication in any Circuit (see below).

> 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.

The 1909 case law distinguishes between a "general publication" and a "limited publication." The former is a sale or offer to sell to a member of the general public; the latter is a distribution to a select group for a limited purpose, without the right of further reproduction, distribution or sale. Only a general publication without notice would forfeit the copyright in a work. If the work was distributed WITH notice, however, courts would accept virtually any distribution as a "publication," since doing so with notice secured a federal copyright.

An unrestricted sale of a painting to a member of the public, or a museum or gallery, would NOT be a limited publication. A single person may be a "select" group numerically, but not qualitatively. Unless the artist could show that there was some sort of restriction on those to whom he would sell the painting, AND some sort of restriction on what the buyer could do with the painting, I don't think this would qualify. [But I would welcome the views of those with more experience under the 1909 Act.]

Since most artists did not use copyright notice, the result was that the initial sale of the original painting often served to forfeit the U.S. copyright in the work. [Foreign artists, of course, had their copyrights restored in the U.S. in 1996, if their works would still have been under copyright but for the notice and registration formalities.] But even when the work was published with notice, the initial sale served to start the duration clock running.

In connection with this point, Amalyah Keshet <akeshet[_at_]imj.org.il> asks:
>
> Most works of art enter museums (in the case of my museum, almost
> all works) not because the museum purchases them, but because they
> are donated or left to the museum. Your phrase "by virtue of once
> having been sold," is better: they were donated to us, but previous
> to that were sold to that donor. But what if the work is donated by
> the artist him/herself? Does that constitute publication?

Yes. A donation is still "distribution" of a copy (the original counts as a "copy," which is defined as ANY material object in which the work is fixed), and any "distribution" is a publication. If the artist donated the painting with restrictions, however, he or she could try to argue that it was only a "limited" publication.

I tend to agree with Vance that perhaps an artwork ought not to be considered "published" until REPRODUCTIONS of it are published. But that's not how publication was defined under the 1909 Act. Distribution to a single person (without restrictions) was sufficient.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Apr 16 1999 - 23:53:47 GMT