Scanning oil painting pictures for commercial website. Advice please?
M.M.Eskenazi
Craig Buckland wrote:
>
> I am planning a website for a customer who wants to provide reproduction
> oil, watercolour, etc. paintings worldwide. He wants to display
> thumbnails and larger version which can be downloaded and viewed.
>
> Most of his paintings are from the 18th, 19th century but there are some
> modern works as well.
>
> I have searched but have not been able to find advice on this. Can
> anyone help me clarify the copyright position on this or point me in the
> right direction to advise my client?
>
> Prefered reply by e-mail to fb...@ibm.net
>
> Many thanks
Are you an Lawyer? Did you see the recent news about museums? Plse
clarify your question.
MTIA [many thanks in advance]
Craig Buckland
Stan Friesen
In article <32DFD6...@ibm.net>, Craig Buckland <fb...@ibm.net> writes:
|>
|> Most of his paintings are from the 18th, 19th century but there are some
|> modern works as well.
|>
|> I have searched but have not been able to find advice on this. Can
|> anyone help me clarify the copyright position on this or point me in the
|> right direction to advise my client?
Sounds iffy to me. Any work recent enough to still have a valid copyright
attached cannot be reproduced or redistributed without permission from the
copyright holder (fair use excepted, but this doesn't sound like it is even
*close* to fair use - multiple entire copies for *sale* - baad news).
I would say: refuse to even do this unless a lawyer tells you it is OK,
or you may be liable for contributory infringement. (I am saying, don't
merely advise, tell your customer - NO WAY).
--
s...@elsegundoca.ncr.com sar...@ix.netcom.com
The peace of God be with you.
Hilary B. Miller, Esq.
On Sat, 18 Jan 1997 03:44:35 +0800, Craig Buckland <fb...@ibm.net>
wrote:
>I am planning a website for a customer who wants to provide reproduction
>oil, watercolour, etc. paintings worldwide. He wants to display
>thumbnails and larger version which can be downloaded and viewed.
>
>Most of his paintings are from the 18th, 19th century but there are some
>modern works as well.
>
>I have searched but have not been able to find advice on this. Can
>anyone help me clarify the copyright position on this or point me in the
>right direction to advise my client?
>
Craig --
Anything published before 1921 in the United States is in the public
domain.
** Hilary **
*********************************************
* *
* Hilary B. Miller *
* le...@compuserve.com *
* Law offices of Hilary B. Miller, Esq. *
* 112 Parsonage Road *
* Greenwich, Connecticut 06830-3942 *
* (203) 861-6262 Voice *
* (203) 622-6264 Fax *
* *
*********************************************
Mike Brown
> Was there a 75 year limit on the duration of a copyright prior to 1921,
> without regard to the natural life of the author?
The duration of copyright has changed several times this century. In
1921, it was 28 years from publication or registration (whichever came
first), with a single renewal possible of another 28 years. However,
publication, registration, renewal and notice were important concepts at
that time, and you could lose your copyright for relatively minor
technical failings which are irrelevant today. The term of copyrights in
existence on January 1, 1978, were extended to 75 years (if in their
first term at that time, the copyright needs to be renewed during the
27th year), although there are lots of complications involving works
whose term was extended under earlier acts, and there have been
amendments restoring copyright in some older works, etc., although in
general if a copyright was allowed to lapse it probably still is lapsed.
Works which were created before 1921, but unpublished, come under yet
other rules. The bottom line is it isn't really possible to make a
blanket statement that ALL works CREATED before a certain date are free
of copyright (unless, I suppose, you pick an early enough date - 1781 is
safe).
Mike Brown, Reg. Pat. Atty. 29,619
Hilary B. Miller, Esq.
>Was there a 75 year limit on the duration of a copyright prior to 1921,
>without regard to the natural life of the author?
Copyright Expiration FAQ
------------------------
Generally, for works created in 1978 or later, a copyright lasts for
fifty years beyond the life of the work's author, after which it
lapses into public domain. 17 U.S.C. § 302(a). If the work is
prepared by two or more authors (a "joint work"), its copyright lasts
for fifty years after the last surviving author dies. 17 U.S.C. §
302(b). For anonymous and pseudonymous works, and for works made for
hire, copyright exists for 100 years from the date of creation, or 75
years from the date of first publication, whichever comes first. 17
U.S.C. § 302(c). No renewal is necessary or permitted. (The year
1978 in this paragraph is because January 1, 1978 is the date on which
the Copyright Act of 1976 took effect.)
For works to which the attribution right and integrity right apply,
these rights endure only for the lifetime of the author. 17 U.S.C. §
106A(d).
For works published in the years 1964 through 1977, copyright lasts
for 75 years from date of publication. 17 U.S.C. § 304(a). In the
past, copyright lasted only for 28 years, unless a renewal was filed
with the Copyright Office. Such a renewal obtained an additional 47
years of protection. Renewal was made optional in June 1992 by P.L.
102-307, 106 Stat. 264. (The year 1964 comes from the fact that
renewal was made optional in 1992, and 1992 minus 28 [the length of
the first copyright period] equals 1964.)
For works published in the years 1906 through 1963, the copyright
lasted for 28 years from date of publication; if the copyright was not
renewed, it lapsed, and the work went into the public domain. Another
28 years of protection could be obtained by filing a renewal, for a
total term of 56 years (1906 comes from the fact that the U.S.
effectively switched to a 47-year second term in 1962, and 1962 minus
56 (the old maximum duration of two 28-year terms) equals 1906). If
the copyright was not renewed after its initial 28-year term, the work
lapsed into public domain. Generally, all copyrights secured in 1921
or earlier lapsed at the latest in 1996 and are now in public domain
(1996 (last year) minus 75 equals 1921). Copyrights secured in the
period 1922 through 1949 continue to exist only if they were renewed,
and expire in the period 1997 through 2024.
Finally, just to complicate things: if the work was created but not
published prior to 1978, its copyright duration is calculated as if it
had been created on January 1, 1978, and lasts as long as that
calculation specifies, or through 2002, whichever is later. If the
work is published in 2002 or earlier, then the copyright lasts as long
as that calculation specifies, or through 2027, whichever is later.
17 U.S.C. § 303.
(Adapted from the Copyright FAQ series by Terry Carroll, Esq.; used by
permission.)
Henry Baker
In article <32e97f47...@netnews.worldnet.att.net>,
le...@compuserve.com wrote:
> Copyright Expiration FAQ
> ------------------------
[good stuff deleted]
What if you own the (recent) oil painting yourself? Can you post pictures on
the web? (I realize that this probably won't affect very many people!)
What if you own a (recent) signed _print_? Can you post a scanne picture on the
web?
Hilary B. Miller, Esq.
On Mon, 27 Jan 1997 17:43:40 GMT, hba...@netcom.com (Henry Baker)
wrote:
>What if you own the (recent) oil painting yourself? Can you post pictures on
>the web? (I realize that this probably won't affect very many people!)
>
>What if you own a (recent) signed _print_? Can you post a scanne picture on the
>web?
No, as a general matter, if you own an original print or painting, you
are not privileged to copy it. The doctrine of "fair use" might or
might not protect you if your web posting is non-commercial.
Stan Friesen
In article <hbaker-2701...@10.0.2.1>, hba...@netcom.com (Henry Baker) writes:
|>
|> What if you own the (recent) oil painting yourself? Can you post pictures on
|> the web?
Nope, ownership of a copy does *not* confer any portion of copyright.
What you describe is called a derivative work, and requires the permission of
the copyright holder of the original picture to be legal.
Now, if you *painted* the picture yourself, you can do any blessed thing
you want with it.
|>
|> What if you own a (recent) signed _print_? Can you post a scanne picture on the
|> web?
No, same as above.
Terry Carroll
On Mon, 27 Jan 1997 17:43:40 GMT, hba...@netcom.com (Henry Baker) wrote:
>What if you own the (recent) oil painting yourself? Can you post pictures on
>the web? (I realize that this probably won't affect very many people!)
>
>What if you own a (recent) signed _print_? Can you post a scanne picture on the
>web?
No.
Ownership of a copyright, or of any of the exclusive rights
under a copyright, is distinct from ownership of any material
object in which the work is embodied. Transfer of ownership of
any material object, including the copy or phonorecord in which
the work is first fixed, does not of itself convey any rights in
the copyrighted work embodied in the object; nor, in the absence
of an agreement, does transfer of ownership of a copyright or of
any exclusive rights under a copyright convey property rights in
any material object.
17 USC 202.
--
Terry Carroll | "Al Gore is doing for the federal government what
Santa Clara, CA | he did for the Macarena. He's removing all the
car...@tjc.com | unnecessary steps."
Modell delenda est | - Bill Clinton, September 20, 1996
Robert Hails
> On Mon, 27 Jan 1997 17:43:40 GMT, hba...@netcom.com (Henry Baker) wrote:
>
> >What if you own the (recent) oil painting yourself? Can you post pictures on
> >the web? (I realize that this probably won't affect very many people!)
> >
> >What if you own a (recent) signed _print_? Can you post a scanne picture on the
> >web?
>
> No.
>
> Ownership of a copyright, or of any of the exclusive rights
> under a copyright, is distinct from ownership of any material
> object in which the work is embodied. Transfer of ownership of
> any material object, including the copy or phonorecord in which
> the work is first fixed, does not of itself convey any rights in
> the copyrighted work embodied in the object; nor, in the absence
> of an agreement, does transfer of ownership of a copyright or of
> any exclusive rights under a copyright convey property rights in
> any material object.
>
> 17 USC 202.
What Mr. Carroll said is true. However, the original/print owner owns the single copy
in his possession and, under the "first sale doctrine," may dispose of it in almost
anyway he sees fit (for example, by reselling it). Ownership may include a very limited
license to make and display copies for purposes which furthers the owner's right of
resale.
For example, if the web site were geared toward facilitate sale of original artwork,
display of the oil painting as advertising may be permissible to pursue the owner's
right to resell the painting. If permissible at all, the right to display in such a
case would be a limited one. The person displaying the work could get in trouble by,
for example, continuing to display the work after it has been sold.
_________ _______________
Bob Hails Hai...@dsmo.com
Dickstein Shapiro Morin & Oshinsky LLP O: 202 861-9112
Washington, DC 20037 F: 202 887-0869
Terry Carroll
On Thu, 06 Feb 1997 14:40:27 -0800, Robert Hails <Hai...@dsmo.com> wrote:
>What Mr. Carroll said is true. However, the original/print owner owns the single copy
>in his possession and, under the "first sale doctrine," may dispose of it in almost
>anyway he sees fit (for example, by reselling it). Ownership may include a very limited
>license to make and display copies for purposes which furthers the owner's right of
>resale.
>
>For example, if the web site were geared toward facilitate sale of original artwork,
>display of the oil painting as advertising may be permissible to pursue the owner's
>right to resell the painting. If permissible at all, the right to display in such a
>case would be a limited one. The person displaying the work could get in trouble by,
>for example, continuing to display the work after it has been sold.
I've never looked into this, and I wonder if there's any case law on one
side or the other. It appeals to common sense, or at least my view of
common sense, but there are a couple of problems with it.
First, there's an exception that's close to this in 17 USC 113(c) -- but
it's limited to works reproduced in useful articles, and does not apply to
works such as paintings. If Congress had intended the exception to apply
to sales of copies other than useful articles, it's hard to explain the
restriction in 113(c).
Slight less materially, another analogous provision is in section 110(7),
but it only applies to performances of musical works for the purpose of
promoting copies of the works. Again, if Congress intended an exemption
to displays or performances of works in general, one wouldn't expect to
find the restriction to musical works.
Robert Hails
Terry Carroll wrote:
> I've never looked into this, and I wonder if there's any case law on one
> side or the other. It appeals to common sense, or at least my view of
> common sense, but there are a couple of problems with it. [Discussion of=
=
> 17 USC =A7=A7 110(7), 113(c).]
Sure it's no slam dunk, particularly in light of Section 202's reservation =
of rights to =
the author. However, one does not need help from the Copyright Act for thi=
s argument, =
just plain ol' contract law. Under first sale, one can argue persuasively =
that, by =
selling the copy, the copyright owner has exercised her rights under =A7 10=
6 by =
distributing copies. Also, non-exclusive licenses need not be in writing u=
nder the Act; =
they may be inferred from the conduct of the parties ["Transfer of ownershi=
p" >< non =
exclusive license; =A7=A7 101, 204]. To infer a limited right to advertise=
for resale of a =
copy from an artist's decision to sell that copy to a purchaser is reasonab=
le.
Of course, it would be nice if someone from Article III thought my way. I =
have not =
looked either.
Regards,
_________ _______________=
Bob Hails Hai...@dsmo.com=
Dickstein Shapiro Morin & Oshinsky LLP O: 202 861-9112=
Washington, DC 20037 F: 202 887-0869=
Terry Carroll
On Tue, 11 Feb 1997 07:50:49 -0800, Robert Hails <Hai...@dsmo.com> wrote:
>Sure it's no slam dunk, particularly in light of Section 202's reservation of rights to
>the author. However, one does not need help from the Copyright Act for this argument,
>just plain ol' contract law. Under first sale, one can argue persuasively that, by
>selling the copy, the copyright owner has exercised her rights under § 106 by
>distributing copies.
Yes, but, 109 _only_ limits the copyright owner's distribution right. It
doesn't limit his public display right or reproduction right. In fact, in
the Ninth Circuit, it doesn't even limit his derivative works right (e.g.,
the Mirage case, in which mounting a copy of a pictorial work on a tile
was deemed to be an infringing unauthorized preparation of a derivative
work, despite the fact that the person mounting the copy owned the copy).
I don't think 109 is going to help, at least not directly. I think the
best argument is a plain 107 fair use argument, perhaps using the policy
upon which section 109 is based.