« iepriekšējāTurpināt »
people who make, exhibit or sell works of fine art under the proposed Copyright Law Revision legislation. Copies of those letters are enclosed for your convenience.
I understand that the Subcommittee on Patents, Trademarks and Copyrights is holding hearings on S. 1361 with a view to resolving open questions. I urge the Committee, at this time, to pay attention to the plight of the artist and to revise the bill to eliminate those provisions which would result in immediate forfeiture of rights in works of art simply by the act of putting them on public display.
I respectfully submit that the definition of "publication" contained in Section 101 of the proposed Copyright Law Revision bill, which includes "public display" of a copy (which includes the material object in which the work is first fixed), serves no legitimate public interest and will work severe hardship upon countless artists whose only avenue toward public recognition of their talents is to display the originals of their works.
The Copyright Revision Bill, in its proper concern for defining the rights and obligations of creators and users of works which must be mass produced by experienced technicians in order to be disseminated and which constitute the bulk of works subject to copyright protection, fails to recognize the essential difference between work of fine art and other copyrighted works.
A work of fine art is, almost by definition, unique and not reproduced in many copies. (I recognize that there are exceptions, such as limited editions of fine prints or sculpture, and perhaps since these editions must be manufactured by technicians, it might be argued that the ordinary copyright notice provisions should apply to them.) “Publication" of a work of fine art under the proposed Copyright Revision Bill can be made by the artist, the gallery owner, or anyone else totally ignorant of copyright requirements who acquires a work and puts it on display. To allow a manufacturer of greeting cards, wallpaper or calendars to make endless commercial reproductions of a work of fine art without paying the artist anything just because the original of the work was displayed to the public without a copyright notice seems to me to be grossly unfair and not justified by any public interest.
It is respectfully submitted that in order to avoid massive loss of rights in works of art by unknowing and unsophisticated artists, dealers and owners of those works who invariably display the originals without any copyright notice, the Copyright Law Revision Bill should be amended to provide specifically that the public display of an original work of fine art does not constitute publication.
I enclose for your consideration a reprint of an article I wrote which appeared in the Summer 1973 issue of the magazine “ARTnews.” This article, entitled "For a Copyright Law to Protect the Artist,” contains other recommendations for changes in the copyright revision bill intended to provide adequate protection to the artist while, at the same time, safeguarding any legitimate public interest in access to works of fine art. Respectfully submitted,
CARL L. ZANGER. [From ARTnews Summer 1973) 'ALMOST NO ONE IN THE FINE ARTS FIELD HAS ANY IDEA ABOUT THE COPYRIGHT
(By Carl L. Zanger?) A workshop on the legal and business problems of artists, art galleries and museums was conducted recently by the Practicing Law Institute, and I participated as an expert on copyright problems arising both under the present copyright law and under the revision bill that had been pending in Congress for many years.
The workshop was attended both by practicing lawyers and representatives of art galleries and museums and by others with an interest in the arts. And again I was made aware of the fact that almost no one active in the fine arts field-whether artist, gallery, museum, or lawyer—has any idea about the copyright law as it applies to the fine arts. It follows that they almost never obtain Federal copyright protection.
This widespread ignorance of copyright requirements has resulted in wholesale forfeiture by artists and their dealers of invaluable rights in works of art. Unless the art community in the U.S. achieves a better understanding, the scan
1 Carl L. Zanger is a new York attorney and lecturer on copyright problems of artists. He is a member of the Committee on Art of the Association of the Bar of the City of New York.
dalous practice of wholesale destruction of essential rights in works of art is likely to continue.
Under the U.S. copyright law, if a work of art is "published" without the form of copyright notice specified by law, the work goes into the public domain. This means that anyone can reproduce and sell copies of it for any use whatevercalendars, wallpaper, postcards or anything else—without permission of the artist or the owner of the work and without having to pay anyone for the right to use the work.
The copyright notice required under the law consists in its most expanded form of the word "copyright," the abbreviation "Copr," or the symbol ©, the name of the artist and year of publication. This notice may appear on the front or the back of the work, or on the permanent base, mounting or any other accessible part of the work.
In practice, almost no paintings bear copyright notices. In practice, almost no fine prints or sculpture (either those that are singly made or those that are part of larger editions) bear copyright notices. In practice, the world art community assumes-probably incorrectly under U.S. copyright law—that the artist retains the copyright in his work, even though the work is exhibited without restriction to the general public in a gallery or museum, and is offered for sale either singly or in multiple copies without any copyright notice.
The unfortunate result of the current widespread ignorance of copyright requirements is that most works of art that have been displayed publicly or offered for sale either in single or multiple copies have been "published" within the meaning of the copyright law. They are therefore in the public domain in the United States, unless the exhibition or sale was made under circumstances that either expressly or implicitly restricted the use the public could make of the work.
Why do artists neglect to copyright their work? Many who think about it at all resist using a copyright notice for fear of "cheapening'' their work by making it appear to be commercial. Some may think that the notice must appear on the front of the work. And there are those who take the position that the conventional display in a gallery or museum does not amount to “publication.” Except in unusual circumstances, this is an incorrect understanding.
For more than 15 years Congress and the U.S. Copyright Office have been try. ing to write a revised copyright law-the first general revision since the present law was enacted in 1909. This effort has been stalled for years by powerful and well-financed special-interest groups seeking preferred rights in copyrighted property.
The copyright revision bill introduced by Senator John McClellan in the current session of Congress establishes a simple pattern, as follows:
1. The public display of a copy of a work (which by statutory definition includes the original) constitutes "publication" of the work.
2. Copyright notice (the symbol © or the word "copyright" or the abbrevation "copr.” with the year of first publication and the name of the copyright owner) must be placed on all publicly distributed copies of the work (including the original).
3. The location of the notice is to be established under rules to be adopted by the Copyright Office.
4. Copyright protection is forfeited if the required notice does not appear on copies of the work publicly displayed.
Taken together, these provisions would destroy the slender thread on which the art community pins its understanding that statutory copyright notice is not required for the protection of works of art. The proposed law would specifically overrule court decisions that hold that the display of a work of art under circumstances in which use and copying are carefully restricted does not constitute publication.
I find it difficult to believe that whoever drafted the bill intended to achieve such a result.
The copyright revision effort, which is being renewed in the current session of Congress, provides an opportunity to furnish statutory support for the practices and understandings that have evolved in the art community. I would make three specific proposals:
First, there is no reason why the same kind of copyright notice that is used for books and other kinds of property (which are "published" only after they have been manufactured and then widely disseminated in numerous copies) should be used for works of art, which the law as drafted would say are published when the artist puts them up for public display. Just as a manuscript is not "published" until it is reproduced in multiple copies and widely disseminated, the law should provide that a work of art is not "published” by display of the original, but only if and when copies are made and disseminated.
Second, to stem the huge loss of rights in works of art, the revision bill should provide that copyright notice for works of art may consist only of the name of the artist and the year. (This could result in loss of protection in many countries overseas—which can be achieved under international treaty only if the symbol © is also included in the copyright notice_but at least it would prevent total forfeiture of all rights.)
Finally, the bill should provide that whenever copyright notice is required to prevent forfeiture of rights in a work of art, that requirement should be deemed to be satisfied if the notice is placed on the front, back, permanent base, mounting, frame or any other accessible part of the work or any accompanying card or placard used to identify the work in normal use.
Each of these changes can easily be made in the copyright revision bill but unless the art community musters its strength to persuade Senator McClellan and other members of Congress to include acceptable provisions in the copyright levision bill, the scandalous loss of copyright protection of works of art will continue.
NEW YORK, N.Y., January 26, 1973. Re: Copyright Law Revision Hon. JOHN L. MCCLELLAN, l'.S. Senate, Committee on the Judiciary, Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN: As a member of the Committee on Art of the Association of the Bar of the City of New York and the Committee on Copyright of the New York State Bar Association, I was asked to lecture at a workshop conducted by the Practicing Law Institute here in New York concerning the legal and business problems of artists, art galleries and museums. My assignment was to discuss copyright problems, arising both under the present copyright laws and under the proposed copyright law revision.
During the course of the workshop, which was attended both by practicing attorneys and representatives of art galleries, museums and others with an interest in fine arts, I was reminded forcibly of the fact that almost no one active in the fine art field—whether artist, gallery, museum, or attorney-has any idea about the copyright law as it applies to the fine arts.
As a practical matter, people involved with the fine arts almost never secure federal copyright protection, and, as was demonstrated in the recent case involving the Chicago Picasso monumental sculpture (Letter Edged in Black Press, Inc. v. Public Building Commission of Chicago, 520 F. Suppl 1303 [N.D. I11., 1970]) when they try to secure statutory copyright protection, it's often too late. The art world doesn't understand federal copyright law, thinks that placing a copyright notice on a work is both an aesthetic insult and too "commercial", and in general reacts emotionally against securing copyright protection on the ground that it's not necessary and undignified.
In practice, almost no paintings by any American artists (or by artists of any other nationality) bear a copyright notice. In practice, almost no fine prints or sculpture (both those which are singly made and those which are part of larger editions) bear a copyright notice. In practice, the art community throughout the world assumes (probably incorrectly under the U.S. Copyright Law) that the artist retains the copyright in his work, despite the fact that the work is exhibited without restriction to the general public in a gallery or museum, and is offered for sale either singly or in multiple copies without any copyright notice.
I know that revision of the copyright law has been a major concern of yours for many years, and that a large number of powerful economic forces have been engaged in fierce combat over the precise form that the copyright revision package will take. However, in all the struggles and conflict. I don't think anyone has fully considered the impact of the proposed copyright revision on the art world--that is, those who make, exhibit or sell works conventionally considered to be works of art.
The copyright revision bill introduced in the last session of Congress (S644) provides in Section 302(a) that in general copyright in a work created after the effective date of the bill subsists from its creation. Section 301 (a ) eliminates the so-called “common law copyright" with respect to all works. Section 4.01 provides that copyright notice shall be placed "on all publicly distributed copies from which the work can be visually perceived” and Section 4.05 makes clear that if the notice is omitted, copyright is invalidated unless the omission is excused under the terms of that section.
Assuming that the term "copy" as used in Section 4.01 of the proposed law includes the original of a work of fine art (as it does under the present copyright law), the total impact of these provisions on works of fine art will be to eliminate a copyright protection from the vast majority of works created by American artists. I am sure that such a result was neither contemplated nor intended. However, in view of the traditional, deeply entrenched reliance by the art world on common law copyright protection, this unfortunate result will inevitably follow. I should point out that the impact is likely to be particularly severe on inexperienced new artists, who know only that they have pictures that they want to make and to have exhibited wherever they can, and do not have any idea about legal formalities for copyright notice required to protect their creations. All the young artist knows is that Rembrandt, Picasso and all of his other heroes never put © on a painting, and he is not likely to have an attorney to advise him that the law was changed.
In addition to the emotional reaction that many artists have against using a copyright notice for fear of “cheapening" their work by making it appear to be too commercial, a large number of contemporary artists do not so much as sign their work because they feel that signature disrupts the aesthetic unity of the composition. These artists view the copyright notice as a further desecration of their work.
I know that it is very late in the history of copyright revision to pose yet another problem. However, I respectfully submit that the most recent versions of the copyright revision bill fail to consider the special situation of fine artists, and may work inadvertent hardship on a vital segment of our cultural life.
The solution to the notice problem for works of art is not an easy one. However, I respectfully suggest that in the case of works of art, the requirement that copyright notice be placed on copies of works should specifically exclude original works of art, and that whenever a notice of copyright is required to obtain protection for a work of art, that requirement should be satisfied if on some reasonably accessable portion of a work (perhaps subject to standards set by the Copyright Office), the name of the copyright propretor appears together with the date of the work. This will conform substantially to current practice by artists. and would avoid wholesale destruction of the property rights of artists through inadvertence or lack of understanding of the new legal requirements.
I will be happy to discuss this matter further with the Committee or its counsel either in person or on the telephone and to provide whatever additional information or assistance I can. Thank you for your attention to this problem. Respectfully,
CARL L. ZANGER,
FEBRUARY 12, 1973. Re: Copyright Law Revision Hon. John L. MCCLELLAN, U.S. Senate, Committee on the Judiciary, Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN: This will supplement my letter of January 26, 1973 in which I called attention to the injury which I thought might be done to people who make, exhibit or sell works of fine art under the Copyright Revision Bill introduced in the last session of Congress (S. 644).
In my letter of January 26, I outlined what I thought were the pertinent provisions of S. 644 that would operate to deprive artists of the protection they now think they have under common law copyright. I neglected in that letter to point out that the definition of "publication" in Section 101 provides, in pertinent part, that publication is the distribution of copies of a work to the public, and that public display constitutes publication. I also neglected to point out that the definition of "copies" in Section 101 provides that the term "copies" includes the material object in which the work is first fixed.
Under present law, the public display of a work of art does not constitute publication if the public understands that no copying of the work may take place. American Tobacco Company v.Werckmeister, 207 U.S. 284 (1907. The Copyright Law Revision Bill would reverse this decision.
I respectfully submit that the Copyright Law Revision Bill provides an excellent opportunity to furnish statutory support for the practices and understandings which have evolved in the art community and that the definition of publication and the notice requirements for works of art contained in the proposed Revision Bill be modified to reflect these practices. Specifically, I suggest that the Bill provide :
1. That the public display of a work of art does not constitute publication;
2. That the copyright notice for works of art may consist only of the name of the artist and the year; and
3. That the Bill provide expressly that where notice is required for works of art, it may be placed on the front, back, permanent base, mounting, frame or any other accessible portion of the work, or on any identifying card or placard which accompanies the work and is used to identify the work in normal use. Respectfully,
CARL L. ZANGER.