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 revision bill, the scandalous loss of copyright protection of works of art will continue. Re: Copyright Law Revision Hon. JOHN L. MCCLELLAN, U.S. Senate, Committee on the Judiciary, NEW YORK, N.Y., January 26, 1973. 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, 320 F. Suppl 1303 [N.D. Ill., 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. 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. |