Re: Re: copyrghts in famous painting

From: Vance R. Koven <vrkoven[_at_]gmail.com>
Date: Thu, 19 Jan 2006 11:15:30 -0500


It's not just common law that gets you into a morass. The federal circuits were split under the 1909 Act on whether public display constituted publication. I at one time represented the heirs of a major American painter, whose only concern was to put some pressure on museums and others who were reproducing the artist's work to do a better job of it. Alas, our circuit, where most of the work was originally displayed, was one that held that public display was publication. Since in those days very few artists put copyright notices on their work (and, indeed, why should they, if copyright transfered with sale?), these things rapidly entered the public domain. As you said yourself, the artist was in the business of making and selling paintings--not in "merchandising." A lot of people think it was better that way.

To your second point, I'm a bit hazy in my recollection of law under the '09 Act, but I don't see how public dissemination of copies by persons other than the copyright holder would constitute publication of the work, except where the copyright holder does so little to prevent it that you could infer a general public license or abandonment of the copyright (they allowed that sort of thing in those days).

Vance

On 1/18/06, Webb, Jere <JMWEBB[_at_]stoel.com> wrote:
>
> Client buys famous painting covered by the 1909 act. The painting was
> probably a work made for hire. It was hung in a private residence for years
> and later in a museum. It was widely copied and distributed in the form of
> posters, photographs, post cards, etc. It was not ever registered, no
> evidence of copyright notice on reproductions. I am trying to analyze who
> owns the copyrights. This artist made his living selling paintings, so it
> doesn't make sense to me that he or whomever commissioned the work let the
> copyrights slip out the door by not affixing appropriate copyright notices
> upon publication.
>
> There must be something I am missing here. Is there an argument that
> taking a photograph of the work and distributing it is not a publication of
> painting? If widely published without notice, the copyrights went out the
> window. If not published, we are, I believe, into a morass of common law
> copyright under state law, with a split in authority as to whether
> copyrights transfer with a painting and as what constitutes publication of a
> painting where displayed in a museum or otherwise. Thoughts?
>
>
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--
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com
Received on Thu Jan 19 2006 - 21:15:30 GMT

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