Re: Re: copyrghts in famous painting

From: Terry Carroll <carroll[_at_]tjc.com>
Date: Thu, 19 Jan 2006 16:30:00 -0500


On Thu, 19 Jan 2006, David Dailey wrote:

> Please forgive what may be an ill-stated question, but suppose the
> work was created prior to 1909 and was displayed in a museum prior to
> 1909 (I'm assuming, then, that the thing could not be eligible for
> the 75 year term nor for the
> perpetually-lengthening-but-always-finite* copyright term of the post
> Sonny Bono dark ages)...
> then can ghosts (or heirs) of the artist still emerge from their
> tombs and claim that the thing was never legally published and that
> museums and textbooks and living people are all infringers?

Sure.

Recall that, pre-1978, there was a bright-line between state copyright and federal copyright; and that the event that triggered moving from the state copyright domain and the federal copyright domain was publication.

I've read (no cite, I've never bothered to confirm this) that many states provided an eternal copyright, so long as the work remained unpublished; effectively taking the position that if the author did not choose to publish, that was his absolute right.

Now, when the 1976 Copyright Act took effect in 1978, that changed. State copyright was for the most part abolished, and all those unpublished works that were protected, if at all, under state law, were suddenly governed by federal law.

Under the standard copyright term (life+50, at the time), many of those works would have instantly gone into the public domain, which arguably would have been 1) unfair and 2) a Fifth Amendment violation, so the 1976 Act included a transitional provision for such works, in section 303. 303 basically says that such works get the normal term, except that the term will extend at least through 2002 (i.e., the 25-year period from 1978-2002); and another 25 years (through 2027) if they were published by 2002 (that second period has since been extended to 2047).

> Can it be argued successfully that such material (living outside of
> books) never enters the public domain, even in countries that attempt
> to limit copyright duration?

Well, not never; if it remained unpublished, it went PD in 2002; if published, it's now finite to 2047. (There are some cases where it could be a tad longer than 2002 or 2047, but these are more like the unlikely "unborn widow" scenarios from a first-year property law class, so let's just keep it simple.)

> Just out of curiosity, what happened in 1989 that might have changed this?

The Berne Convention. On March 1, 1989, the US ratified and implemented the Berne Convention. The Berne Convention is a copyright treaty that, among other things, prohibits signatory countries from conditioning copyright on formalities like a copyright notice. So the act of a publication, after 3/1/1989, of a work no longer affected its copyright status. With or without a copyright notice, it retained its copyright. The same work, if published without a notice on February 28, 1989, would have forfeited its copyright. (And even that's been modified for non-US works, as a result of the GATT Uruguay Rounds.)

> *The expected date of entering the public domain approaches infinity,
> but is prevented by the constitution from ever reaching infinity.

"Give me asymptotes or give me death." Received on Fri Jan 20 2006 - 02:30:00 GMT

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