Copyright versus Partnership
James White
"I was inquiring about the lawsuit won recently in Massachusetts by a
sculptor who had sued a corporation that had bought a work of his and then
wanted to dismantle it. My question is if an artist produces a work, who
owns it once it has been sold? My understanding about the court case was
that the artist actually retained rights to the intellectual property of the
piece even though the corporation had bought it. The peripheral question
is, if an artist creates a work, which is then sold through a company he
might be a partner in, regardless of current partnership laws which seem to
state that anything put into a partnership by any partner becomes a
possession of the partnership, who retains the rights of ownership of the
work? If the design is created by a partner and sold through a partnership,
but is still considered a piece of art would the artist maintain the
intellectual copyright of the piece as the court in MA seemed to rule?"
One reply:
>googling on law, Massachusetts, sculpture got this...
> http://www.theartnewspaper.com/artlaw/artlaw.asp
> "BOSTON. A federal court has ruled that a corporate developer may
> not remove a group of sculptures which the artist says were
> specifically designed for a Boston seaport park, under a
> Massachusetts law broadly protecting artists' rights. But the court
> held that the sculptures were not protected under federal law, which
> does not protect the location or display of 'site-specific'
sculptures.
My reply:
>My question is if an artist produces a work, who owns it once it has been
sold?
The buyer. But the buyer only owns the copy they bought unless there is a
contract stating otherwise and, for public displays, there may be other
limited rights retained by the artist (see article link above) by "law"
(legislative or court created). But you need to be aware that the purchase
of an art work DOES NOT transfer the COPYRIGHT for it from the artist who
still (in the absence of contract otherwise) "owns" a whole host of rights
to create or authorize others to copies, derivative works, etc.
> My understanding about the court case was that the artist actually
>retained rights to the intellectual property of the piece even though
>the corporation had bought it.
No, you're mixing up issues. Massachusetts LAW is what gave the artist, in
this SITE SPECIFIC ART SITUATION his extra rights (perhaps----the future
string of court cases is NOT decided yet). This from the linked article:
"But the court went on to conclude that under the 1984 Massachusetts Art
Preservation Act (MAPA), Phillips had the right to prevent changes in the
location of his site-specific works."
> The peripheral question is, if an artist creates a work, which is then
>sold through a company he might be a partner in, regardless of current
>partnership laws which seem to state that anything put into a partnership
>by any partner becomes a possession of the partnership, who retains
>the rights of ownership of the work? If the design is created by a partner
>and sold through a partnership, but is still considered a piece of art
would
>the artist maintain the intellectual copyright of the piece as the court in
>MA seemed to rule?
You're still mixing apples and oranges. The MA law has NOTHING to do with
COPYRIGHT. As for your partnership situation I'm going to go out on a limb
and guess that if, as a partner, the artist is creating works for the
partnership to sell then the PARTNERSHIP owns the whole interest---the
produced work and the copyright to it---under essentially (if not exactly)
the same deal as a "work for hire."
In copyright there are always 2 rights sets, the rights to a specific
copy---which transfer with the sale, transfer, whatever, of that copy---and
the copyright rights which are owned initially, in the absence of a contrary
contract, by the "creator." And it's here that your issue arises, who is the
"creator". In an ordinary company when someone is hired to create artistic
works for the company to sell, and/or reproduce and sell, the "creator" is
the company, NOT the individual. Thus the company is the initial copyright
owner. In a partnership---which can be created contractually or by
circumstantial default under the specific laws of your state---not only
federal copyright law comes into play but so do all the relevant state laws
and any contract (or other, hopefully written, agreement among the
partners).
In other words you need a MASSACHUSETTS intellectual property attorney with
strong partnership expertise to advise you on your specific situation.
I'm posting this on the misc.int-property news group where a bunch of IP
attorneys hang out to get their responses which I'll forward to you.
You misc.int-property folks views would be appreciated. Thanks.
--
James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)" Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com
[Follow sig link for email address. Replies go to spam bit-bucket]
Isaac
wrote:
> The originator's question:
>
> "I was inquiring about the lawsuit won recently in Massachusetts by a
> sculptor who had sued a corporation that had bought a work of his and then
> wanted to dismantle it. My question is if an artist produces a work, who
> owns it once it has been sold? My understanding about the court case was
> that the artist actually retained rights to the intellectual property of the
> piece even though the corporation had bought it. The peripheral question
> is, if an artist creates a work, which is then sold through a company he
> might be a partner in, regardless of current partnership laws which seem to
> state that anything put into a partnership by any partner becomes a
> possession of the partnership, who retains the rights of ownership of the
> work? If the design is created by a partner and sold through a partnership,
> but is still considered a piece of art would the artist maintain the
> intellectual copyright of the piece as the court in MA seemed to rule?"
>
Under copyright law, the artist would still own the copyright in the
work, and would also still have his Sec 106A rights independently of
even transfering the exclusive rights under Sec 106.
For most works, owning the a copy gives you the right to destroy the work,
but for 'a work of visual art' moral rights under Sec 106A may be
in play.
I would expect that to the extent MA overlaps with federal copyright
law, it would be preempted, but copyright preemption is a little
tricky, and I would not be terribly surprised if I were wrong. I
think the court correctly found that moral rights under federal law
would allow the artist to prevent his work from being moved.
Isaac
James White
Thank you. Your answers were, I presume, to the "who owns ["]it["] once it
has been sold?" question. That unfortunately isn't the thrust of the
querier's question. His question is essentially: as a member of a
partnership, and creating (some) works for sale through that partnership,
who owns the copyright to the works he created and gave to the partnership
for sale?
Isaac
wrote:
>>Isaac
>
> Thank you. Your answers were, I presume, to the "who owns ["]it["] once it
> has been sold?" question. That unfortunately isn't the thrust of the
> querier's question. His question is essentially: as a member of a
> partnership, and creating (some) works for sale through that partnership,
> who owns the copyright to the works he created and gave to the partnership
> for sale?
Assuming that the member created the work alone, then the issue of ownership
would revolve around whether there was a transfer of rights to the
partnership or whether the work was a work for hire.
Work for hire requires either than the partner be an employee or that
there is a written agreement that his work is a work for hire. The
agreement would have to designate the work as work for hire in unambigous
terms although use of the phrase "work for hire" is not required. Tranfer
of copyright requires a written document.
Most likely the partner is not an employee so the issue revolves around
whatever written agreements are in place. I didn't see any detail about
the written agreements, so perhaps the question has no answer.
If "gave" simply means handing over the work and splitting the profits
among the partners, then the creator continues to own the copyright.
Isaac