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Commissioned art prior to the 1988 Act

 
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peregrinus
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PostPosted: Sun Jan 01, 2012 2:40 pm    Post subject: Commissioned art prior to the 1988 Act Reply with quote

Good day everyone,

I'm struggling with the interpretation of the commissioned art copyright, and I hope you could help.
It is my understanding that copyright of every piece of commissioned art created nowadays belongs to the creator of the art unless under the terms of employment. I also understand that copyright of commissioned portraits and photographs commissioned and paid for prior to the 1988 Act belongs to the person who paid and commissioned the work.

However, what I am interested in, is the copyright status of set of images (not portraits) commissioned and paid for in 1909/1910. Would such copyrights belong to the artist or the person who commissioned and paid for the work (not under the terms of employment)?

I would be eternally grateful for making this matter clear for me.

Oh, and happy New Year everyone!

Thanks,
Chris
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AndyJ
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PostPosted: Sun Jan 01, 2012 11:41 pm    Post subject: Reply with quote

Hi Chris,
The law governing copyright in paintings, drawings and photographs during the period 1909/10 was the 1862 Fine Art Copyright Act.
Section 1 of this law accorded the copyright in a commissioned work to the commissioner, and not the artist. However for copyright to be effective, the owner of the copyright had to register the painting, drawing or photograph at Stationers' Hall and pay the fee of one shilling per item.

Once registered, copyright lasted for the lifetime of the artist plus seven years.

Interestingly the subject of employement was not mentioned, but the wording "provided that when any Painting or Drawing or the Negative of any Photograph [...] shall be made or executed for and on behlaf of any other Person for a good or a valuable Consideration, the Person so [...] executing the same shall not retain the Copyright thereof .. " was probably intended to cover employees as well as independent artists and photographers.
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peregrinus
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PostPosted: Mon Jan 02, 2012 11:34 am    Post subject: Reply with quote

Hi Andy,

Very informative, thank you!
I suppose I'd need to check with the National Archives whether the images were registered with the Stationer's Hall?
Suppose they were not - does the copyright go back to the artist? And if so, what was a lifetime of the copyright in that case?
And do I understand correctly, does the 1988 Act not work back? That is - is the copyright of art created in 1909 and published in 1910 defined only and exclusively by the 1862 Act?

Thanks,
Chris

PS - I've just found the text of the 1862 Act, I'll try to dig through it, see how that goes Smile
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AndyJ
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PostPosted: Mon Jan 02, 2012 12:59 pm    Post subject: Reply with quote

Hi Chris,
If the copyright was not registered then it would not have applied at all. However in 1911 a new Copyright Act (pdf) was passed which effectively removed the registration requirement and granted* works made before 1911 the same new term as after the Act came into force, namely the author's life plus fifty years. This brought Great Britain (and the rest of the British Empire) into line with the Berne Convention to which Britain had acceded in 1906 (see afternote).
Therefore depending on the lifetime of the author, the pictures could still be in copyright. Say the author was 18 in 1910 and lived until he was 80, thus he died in 1972, plus fifty years would take the term to 2022. As you mention this is further complicated by the fact that the 1988 Act extended the term by a further 20 years for works which were still in copyright on 1 August 1989.
However as I mentioned in another recent post, the 1911 Act treated photographs differently to other artistic works and (in section 21) made the term of the copyright 50 years from the date the photographic negative was made (ie when the picture was taken), without reference to the photographer's lifetime etc. This anomalous situation was specifically not altered by the 1956 Copyright Act, for any photographs which were still in copyright at the time (Schedule 7, para 2 of the 1956 Act refers)
I'm not clear from your posts whether you are referring to photographs or other artistic works, so I can't be sure which term will apply.
In either case, though, the commissioner of the image or his heirs will be the actual copyright owner.

* See Schedule 1 of the 1911 Act which makes its provisions retrospective.

Afternote:
Britain first acceded to the Berne Convention in 1887, and the 1906 date refers to the Berlin Act of the Berne Convention which updated the original agreement.
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Last edited by AndyJ on Mon Jan 02, 2012 5:05 pm; edited 1 time in total
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peregrinus
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PostPosted: Mon Jan 02, 2012 1:42 pm    Post subject: Reply with quote

Hi Andy,

You're truly a mine of knowledge!
I specifically refer to the world most known deck of tarot cards - those painted by Pamela Coleman Smith under the instruction and commissioned by A.E. Waite.
Cards were painted in 1909 and published under exclusive licence by Rider & Co in 1910. There is some dispute now regarding those cards being in public domain. US Games, who own rights to the name "Rider-Waite Tarot" are also sub-licensee of Random House UK, who claims to be the exclusive licence holder for this deck.

Now here's the trick: according to US law (never mind the details) those images are in public domain on US territory. US Games have always claimed that due to the fact that the images were commissioned and published in UK, they are subject to UK copyright laws. They also used to say that A.E. Waite commissioned those paintings and therefore they would not be in public domain until 70 years after his death (died in 1942). However, recently they have changed their statement saying that the copyright will be in force until 70 years after the death of the artist (P. Coleman Smith), who died in 1951.

While it is obvious why they would be saying that, it is curious whether they are right to say so.

In my understanding, their previous statement was correct - since the work has been commissioned, the commissioner should be the copyright owner. I was just wondering whether they are any 'tricky statements' in the Acts that would allow for a different interpretation.

Thanks again,
Chris
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AndyJ
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PostPosted: Mon Jan 02, 2012 5:01 pm    Post subject: Reply with quote

Hi Chris,
Blimey that additional information complicates things. US copyright law in this period (the early 1900's) differs considerably from the UK law of the time.

So it's probably best to try and pin down a few reasonably certain facts and conclusions. Pamela Coleman Smith was a British citizen, and at the time she did her Tarot card work, was domiciled in Britain. Thus as far as copyright within the UK is concerned it is her date of death in 1951 which is significant. At that time the term was lifetime plus fifty years, so the copyright (irrespective of who owned it) would have expired on 1 Jan 2002, but for the intervention of the 1988 Act which extended this by twenty years, to 1 Jan 2022. The first of January comes about because the exact wording of both the 1956 and 1988 Acts is "the end of the period of [fifty/70] years from the end of the calendar year in which the author [died/dies]". Prior to that it was fifty years from the actual date of death.

I think it is sensible to assume that Arthur Edward Waite was the actual owner of the copyright, given his role in commissioning and directing the project. However his date of death is irrelevant under both US and UK law as he was not the author of the work. Given the amount of guidance and inspiration he provided it could be argued that he might possibly be considered a joint author and copyright owner. But as that only complicates matters, I don't think that line is worth pursuing, especially as he died before the artist and it is her date of death which matters.

It's worth giving a little bit of background to the corresponding copyright law in the USA at the time. Immediately prior to these events, it was the first US Copyright Act of 1790 (amended by the 1831 Act) and the 1891 International Copyright Act (also known as the Chace Act) which were in force. However given the fact that the Tarot cards were first published (in Britain) in December 1909, I think the later US Copyright Act of 1909 is the one to examine in detail, as it made a number of changes to the existing domestic and international provisions of the law.

Under the 1831 Act, the term was 28 years from the date of publication, but subject to the work having first been registered with the Library of Congress. If the author was still alive at the end of this period, he could renew the term for a further 14 years (ie a total of 42 years). But the Act offered very little protection to works which did not originate in the USA. Foreign works that were published in the US (as opposed to having been imported in their finished form) could only be registered by a US citizen. Imports had no protection whatsoever and could be impounded by customs. Conversely other countries were under no obligation to protect the copyright of American authors in their jurisdictions.

The 1891 Chace Act changed this by allowing reciprocal arrangements between nations (note 1) by which the US would apply the same copyright term(note 2) as would be available to US citizens, subject to registration, and importantly, that the work was published in US on or before the date it was published in the home nation. This was later relaxed to within 30 days of first publication elsewhere. Additionally, literary works had to be typeset in the USA to gain protection there. (note 3)

However Pamela Coleman Smith's Tarot card deck was first published in Britain in December 1909. This was after the US 1909 Copyright Act had come into force in July 1909. So this Act would seem to be the most relevant as far as determining the status of the US copyright in the cards. The 1909 Act retained the basic copyright term of the 1831 Act, subject to registration, but allowed for the term to be extended by a further 28 years to a total of 56 years from the date of publication. The Act also included the provisions of the 1891 Chace Act. A major new requirement was the necessity of having a copyright notice (the word 'Copyright' or the symbol plus the copyright owner's name and date of publication) affixed to the work. This was important because without the notice, the work was not entitled to copyright protection, irrespective of its source.

So to determine the Tarot cards' copyright status in the US, there are a number of uncertainties to be addressed. Were the designs registered in the US within 30 days of their first publication in Britain? Did they bear the requisite copyright notice? And if they were registered (in around January 1910), was the registration renewed 27 years later? If the answer to all of those is 'yes' then copyright in the US should have lasted until 1966. However if the answer to either of the first two questions was no, then it is highly questionable whether copyright ever existed in the US, and the card designs may be in the public domain there.

Incidently the USA did not join the Berne Convention until 1988, and it wasn't until 1976 that it began to recognise the lifetime of an author as being significant in determining the copyright term.

Notes
1. The arrangement was not universally available. Terms were agreed in a series of bilateral agreements between the US and the major European countries (including the British Empire), Chile, Mexico and much later China and Japan.
2. So long as the US term did not exceed the term which was available in the 'home' nation.
3. This was done to appease the powerful American print unions.
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peregrinus
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PostPosted: Mon Jan 02, 2012 5:21 pm    Post subject: Reply with quote

Hi Andy,

I think it's time for me to say "blimey!" Smile

That was some ten times more information that I had hoped for! Thank you for your precious time!

And I cannot believe I've missed the fact that it's not the date of death of copyright owner but the the actual author (or the last of them to die) that is crucial.

Thank you for that once again!

Chris
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