COMMENTS ON THE ART MARKET
Copyright, Public Domain & The Berne Convention
Have you ever wondered how the painting that is hanging on your wall is also featured on a greeting card, or a puzzle, or a garbage can? Many people are under the impression, a wrong one I might add, that because they buy a work of art, they also own the copyright. In actuality, the copyright on a work of art stays with the particular artist throughout his/her lifetime and continues for an additional 70 years after their death (while there are some exceptions, this is the general rule of thumb).
What the owner of the work does own is the work of art and nothing more. They do not have the right to reproduce that work until they either receive written permission from the artist or his/her estate, they purchase the copyright from the artist, or the estate, or the work passes into the ‘public domain’ – ah those key words ‘public domain.’ So what is this ‘public domain’ and how does one get into it?
To begin with, the phrase ‘public domain’ is used to described (and I will stick to discussing works of art) those works that are no longer under copyright protection. However, to more clearly understand copyright protection we need to first mention The Berne Convention and how it relates to US law.
This international copyright treaty, formally called the Convention for the Protection of Literary and Artistic Works, was signed in Berne, Switzerland on September 9, 1886 and was originally created, as the wikipedia.org web site states: in an effort to force different nations to recognize the works of foreign nationals as copyrighted. The treaty granted that each contracting state would recognize as copyrighted works authored by nationals of other contracting states. Copyright under the Berne Convention is automatic: no registration is required, nor is the inclusion of a copyright notice. The Berne Convention provided for a minimum term of copyright protection of the life of the author plus fifty years, but parties were free to provide longer terms of copyright protection. Before this time a work that was copyrighted in one country could be freely reproduced in another. In 1971 the treaty was amended to increase the copyright to life plus 70 years and today some 96 nations subscribe to the treaty ... but there are exceptions to the Convention's rules.
In the United States, the enacting legislation pertaining to the Berne convention states that (sent to me by Page Miller, Senior Copyright Information Specialist, US Copyright Office):
(1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto (hereafter in this Act referred to as the "Berne Convention") are not self-executing under the Constitution and laws of the United States.
(2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law.
(3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose." (P.L. 100-568)
To go even further, currently the US copyright law states that (taken directly from the U.S. government's copyright web site – Section 302): In General. — Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author's death. … In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death. … In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. In section 303 it also notes that: Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047. Wow! That was a mouthful.
Please remember that this is a very, I mean very, brief summary of the treaty and only a glimpse at US Copyright laws and as you can see, these laws can be confusing. Before you decide to reproduce something it is advisable that you consult someone well versed not only in international copyright law, but the copyright law of the country you live in, because as we all know, every law is open to interpretation!
Today, it is generally agreed that ‘most’ works ‘published’ prior to 1923 are in the public domain. However, there are still some works that may have been created prior to 1923, by artists who may have died before then, that are still protected by copyright in the US. In an effort to clarify this even further Ms. Miller, from the Copyright Office, relayed the following:
As for works by artists who died before 1923 still enjoying copyright protection, you actually hit on it in your narrative. You included an explanation of duration for those works which, as of January 1, 1978, were neither published nor registered. They would be protected for the life of the author plus 70, etc. It's the publication before the end of 2002 that is the key. While this affects a relatively small number of works, there are still those that are protected. I was dealing with this situation recently. It involved a pre-Civil War painting by an American artist that had always been in a private collection. It was first displayed publicly in an exhibition in 2000 and was printed in the catalog. It was then considered published because of the distribution of the catalog. Since it was published prior to the end of 2002, the copyright was then extended through 2047.
So, getting back to public domain, if a particular work truly falls into the ‘public domain,’ anyone who ‘has access’ to it will have the ability to publish it! Did you catch that key phrase - ‘has access’? Yes, in order to reproduce a work of art you need to be able to get your hands on it, or at least be able to legally obtain a good photograph of it. Therefore, if your family was the only one to have ever owned a particular work of art, and the artist, during their lifetime, never authorized its reproduction, and you did not give it to someone who had the ability to photograph it, then you will be able to rest comfortably … knowing that your work will never grace the side of a bathroom trash can.
However, if you own a work of art that is in the public domain and the work has been on the market, and a number of people have owned it, then any of those people can have a photograph that they can use, or license, for reproduction purposes. That is why you may find that a reproduction of a work you currently own and so proudly display in your living room is also featured quite prominently in the neighbor’s powder room.
Now before you get upset, I would like you to remember the old saying – imitation is the sincerest form of flattery. The fact that the work you own has been reproduced is not a bad thing and making a work more ‘well known’ will likely have a positive impact on its value; something you as the current owner will benefit from.
Here is a little final food for thought on this topic. I stated earlier that even when a work of art passes into the public domain there are numerous times where the only way to reproduce it is to have access to it. If you own a work where you are the only person who can grant that access, then you have the ability to charge a premium for that ‘exclusive’ access. Yes, while anyone who has a legitimate photograph of a work can charge a fee for the reproduction rights, individuals and corporations will often pay a premium for the ‘exclusive’ reproduction rights … and I bet you never thought that your artwork had the ability to pay some type of cash dividendJ!
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More Swatland Updates
As you all know, Sally’s painting Newport Surf will be included in the American Society of Marine Artists’ exhibition at the Coos Museum this summer. We are now pleased to inform you that a selection of Sally’s paintings were juried by the Fellows of the Society and she was elected an Artist Member.
You will also be delighted to know that Sally's painting Noelle was selected for inclusion in the 2004 New England Exhibition. This juried exhibit is sponsored by the Cape Cod Art Association with submissions open to all New England artists. Of the more than 350 works submitted only 110 were chosen for inclusion. This exhibit runs from June 24th through July 19th, 2004 at the Association's gallery in Barnstable, MA. If you happen to be in the area during the exhibit, please stop in and have a look.
Just before I began printing this newsletter, Sally called to inform us that she was awarded Second Prize in Oil, by the jury at the New England Exhibition, for her painting Noelle. This is more great news for both Sally and all of her supporters.
Howard L. Rehs
© Rehs Galleries, Inc., New York City – July 2004
Gallery Updates: Please remember that for the month of July the gallery’s hours are Monday – Thursday from 10am – 5:30pm. Since our last update we have added works by a number of artists to our web site, including Junn Roca (yes a new name and a wonderful landscape/genre artist), Sally Swatland, Edouard Cortès and Antoine Blanchard.
Virtual Exhibitions: As I mentioned in my last newsletter this summer we are upgrading our biography pages. There are now new, and I might add detailed, bios for Bail, Breton, Chaplin, Jacque, Rousseau, Daubigny, Courbet, Friant, Bonheur, Dieterle, Trouillebert and Pearce. For those of you interested in the works of these artists, I think you will enjoy reading them.
Since our last update a number of works by the following artists have found new homes: Antonio Jacobsen, Sally Swatland, Gregory Frank Harris, Edouard Cortès, and Antoine Blanchard. Images of most of these works have been added to their respective Virtual Exhibitions.
Next Month: Not sure yet, but I am always open to suggestions.