Copyright Aid

Another new user seeking specialist advice, thanks in advance.

I have recently acquired a painting of a dog, signed by a known artist (1937) who died in the 60's. The provenance of the work is that it was believed to be commissioned by the owner and has never been published. My understanding is that the 1911 law concerning commissioned paintings might apply, and as new owner I might now own the copyright. It is potentially a very marketable image, so I wish to establish this point clearly before either looking to reproduce/publish the image myself or negotiate a deal with the well known London based art publishing company who own the artist in question's copyright.

My questions would be

1. Is it a 'portrait' or a subject, and does this matter?

2. As both commissioner and artist are deceased, how much evidence is required to prove the work was commissioned, and whether there was any agreement re copyright rights at the time?

3 As far as I am aware it has never been published, but I do not have access to the artists complete works. He was an illustrator of many books, there is a possibility my painting may have appeared in one that I haven't seen. I am assuming if this is the case, copyright would lie with the artist?

3. The original 'commissioner' was a titled gentleman, is there any possibility the copyright rights may lie with his traceable descendents (ie the current Lord X), despite the fact that they no longer are in possession of the work?

Many thanks
BobR

Hi Bob,
You have certainly done your homework, and I think most of your basic assumptions are correct. Details of the copyright in this painting should be determined by the 1911 Copyright Act (as amended by the 1988 Copyright Designs and Patents Act), which means that the term is the artist's life plus 70 years, and assuming that the painting is a 'portrait' then the person who commissioned it is the first owner of the copyright.
As you also correctly identify, the key question is whether a painting of a dog is a portrait for the purposes of section 5 of the 1911 Act which says:

5 -(1) Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
Provided that:-
(a) where, in the case of an engraving, photograph, or portrait, the plate or other original was ordered by some other person and was made for valuable consideration in pursuance of that order, then in the absence of any agreement to the contrary, the person by whom such a plate or other original was ordered shall be the first owner of copyright;
[ ... ]

I can find no decision of a court about whether a portrait has to be of a person or if portraits of animals can be included. Many online dictionaries seem to confine the definition to humans but significantly the OED includes animals, and the National Portrait Gallery includes portraits of animals (for example see here). In the reporting (four lines from the bottom of the third paragraph) of a famous case Prince Albert v Strange [1849] 2 De G & Sim 652, mention was made of "portraits of their favourite dogs" - the 'their' here referring to Queen Victoria and Prince Albert. However these words were not taken verbatim from the trial so cannot be relied on as fully accurate. That case was not about copyright but rather about breach of confidence, so one cannot draw too many inferences from it. Nonetheless this reference clearly shows that most people would readily accept the concept of portraits of animals.
On the basis of the foregoing, I would argue that your painting is a portrait, and hence Section 5 applies.
The matter of whether or not the painting has been published really doesn't alter things. Under the 1911 Act, publication does not include the exhibiting of the painting in public. Only the reproduction of the painting in a book or magazine etc would qualify, but assuming that the copyright owner (ie the commissioner of the painting) had agreed to this, which seems likely as he would have had to allow physical access to the painting for this purpose, publication does not alter either the copyright term or the Section 5 provisions.
So my view is that the copyright currently belongs to the heirs of your titled gentleman who commissioned it. I don't think you have to prove this fact - it can be presumed from the circumstances, and the existence of any agreement to the contrary (as referred to in Section 5) would need to be proved by anyone who asserted that to be the case.
Possession of the physical work has no bearing on the ownership of copyright, although clearly you can control access to it so that no-one can copy it photographically without your permission, even assuming the copyright holder was content for this to happen.
I hope this helps. To quote a recent new book, Art and Copyright by Simon Stokes 2nd edn 2012 Hart Publishing p199:

The copyright position with regard to commissioned portraits and other artistic works [...] is potentially complex

I'm sure you agree.

Dear Andy
Many thanks for your detailed reply, I am extremely appreciative of your time and efforts. I agree with your final quote!!

I have struggled to find detailed reference to the issue of inheriting the commissioned copyright rights separately from the commissioned work. The UK Copyright service factsheet #P.01 (new so can't post links) states in its common questions.

9. Can copyrights be inherited? Yes. The person who inherits the work will become the new copyright owner.

This to me implies that where rights are not with the artist/originator, they travel with the work. This does seem a bit more logical/practical, but I don't suppose that counts for much, and from your reply I trust your knowledge/experience of copyright law trumps this fairly simplistic interpretation.

Overall, it seems I will need to seek specialist real life legal advice, but I am now far clearer of the appropriate questions to ask. If you can give me some pointers re recommended firms (PM if necessary) I would be most grateful. I am in the South West of England.

With gratitude

BobR

That'll teach me to post late at night! It is quite possible that you and the UK Copyright Service* are right. But just to continue the 'it's complex' theme, it all depends on when the commissioner died and whether who ever inherited the painting under his will was still alive in 1957. And the fact of whether the painting was or wasn't published, and if so when, also now becomes an issue.
I'll try and clarify.
If the commissioner died prior to 5 November 1956 (when the 1956 Copyright Act came into force) then there were no special provisions concerning testamentary dispositions of artistic works**. The 1956 Act introduced at s 38 the following:

38 Copyright to pass under will with unpublished work
Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless a contrary intention is indicated in the testator's will or a codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

Schedule 7 of that Act covers transitional arrangements, and paragraph 29 specifically applies here:

29 -(1) Section thirty-eight shall not apply to a bequest contained in the will or a codicil to the will, of a testator who died before the commencement of that section.

Sub paragraph (2) then goes on talk about about unpublished manuscripts which are left as bequests, basically continuing what the 1911 Act said, but there is nothing further about artistic works.

However if the painting remained unpublished and was transferred by a later will (after 5 Nov 1956) then s 38 would apply, or if the inheritor died after 1 August 1989 (when the CDPA came in force) then it would be covered by s 93 of the CDPA which says substantially the same as the earlier s 38.

93 Copyright to pass under will with unpublished work.
Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—
(a) an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator, or
(b) an original material thing containing a sound recording or film which was not published before the death of the testator,
the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

So as I mentioned earlier, the fact of whether the painting has been published and if so, when, does now become important, as does the chain of inheritance. Note that the mere sale of the painting would not transfer copyright and from the wording of the two sections I think that inheritance under the intestacy rules would not invoke the statutory transfer of copyright, even though this seems anomalous.
You don't mention exactly how the painting came into your possession, but if it was by purchase rather than inheritance, and there was no specific assignment of copyright at the time, then it must be presumed that the copyright remains with whoever last inherited the painting (under either s 38 or s 93) through a will.
Sorry for the confusion caused by my earlier mistake.

* The UKCS statement is a little misleading as they are only referring to a small subset of cases where the owner of the copyright and the owner of the work are the same person, as in the case of someone who commissions a painting in the circumstances described in my first post. And of course they are also only referring to unpublished works. Ordinarily where an artist sells or gives away his work, he still retains the copyright, and the new owner of the work has no special right or licence to copy the work. The owner may however exhibit the work in public as this does not constitute publishing or communication to the public or showing in public in the sense which applies to other copyright works.

** there was a provision in s 17 (2) of the 1911 Act concerning the transfer of copyright in an unpublished manuscript under a testamentary disposition along with title in the manuscript, but there is no similar provision for other copyright works.

Andy, many thanks again.

My goodness the plot thickens, doesn't it? I'm not sure I totally understand all of the above, and I don't want to out myself too much, but if it helps....

The picture was purchased by myself at public auction from my late mother's estate (of which I am beneficiary/executor with my two brothers) Public auction of effects was necessary to help pay inheritance tax (GRRRRRRRRR!!!)

Commissioner died in 1965. From 1940-1950 the commissioner and my relative were joint masters of foxhounds. Guess I need to clarify that painting is of hound not dog, (the two are NOT the same!)

We are not certain of exact form/time of transfer of ownership of pic, its possible it was gifted prior to death of commissioner, but logically would have been some time between 1940-1965.

It has certainly been in 'family' ownership for as long as present generation can remember. Mum's relative died in 1970's and their spouse in 1990's and we think Mum was gifted the pic prior to death of the spouse, although we don't have specific mention to it in wills of the time.

It has only been since the auction that I have thought about publication and reproduction potential. From what you're saying copyright may lie with Mum's estate, whilst I own pic. This would be win/win from our point of view and may potentially go some way to sorting our problem with HMRC!

Think I need to buy a copy of that book you mentioned!
Many thanks
BobR

Hi again Bob.
I'm glad to see that it is not just the law which is complicated in this instance.
So long as you remain reasonably sure that the painting was commissioned, and I think that is a reasonable assumption in the circumstances, the commissioner, Lord X, was the first owner of the copyright who in turn either gifted it in vivo or bequeathed it* along with the painting itself, to your relative and it has remained within your family since then, and now vests, in all probability, jointly in you and your brothers. I say this because you suggest there was no specific bequest of the painting to any individual contained in your late mother's will, and since the chain of inheritance in the copyright was broken by the auction it rests as part of the estate which you jointly own or hold in trust.
If Lord X left a will which specifically bequeathed the painting then s 38 applies, but if it was a gift ante mortem there is no such certainty. In those circumstances copyright might have been assigned (in writing) but I suspect this detail might not have been known or cared about at the time. This is what the law has to say on the transfer of copyright generally:

90 Assignment and licences.

(1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
(2) An assignment or other transmission of copyright may be partial, that is, limited so as to apply—
(a)to one or more, but not all, of the things the copyright owner has the exclusive right to do;
(b)to part, but not the whole, of the period for which the copyright is to subsist.
(3) An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.

[...]

A court might very well find that in the case of a gift, there was a presumption that copyright transferred along with the title in the painting, but frankly the only way to find out for sure would be if Lord X's heirs wished to challenge that assumption (and why should they even be aware that they might have a claim?).
The final bit of the puzzle is easier to deal with. Assuming that copyright was either explicitly or implicitly transferred with the gift of the painting, then henceforward as the painting was passed down within your family either by testamentary disposition or application of intestacy law, so the copyright would also follow the same path, due the phrase the 'operation of law' in s 90 quoted above. This is in contrast to the absence of similar wording in s 93 which I discussed in the previous post.


PS I can probably save you £35 by saying that although it's an excellent book Art and Copyright doesn't throw much additional light on this particular problem. For that I think you might need to invest in Copinger & Skone James on Copyright - a snip at £450!

* I'm sure you have already considered checking the Probate Registry in High Holborn for a copy of Lord X's will.

Thanks again for your reply, can't imagine the lawyer £'s you're saving me (not least in avoiding unnecessary amazon spending)
To summarize, Mum's estate could well own copyright.
Possible challenges include
A) The artist's copyright holder on the basis that
i) Painting wasn't commissioned
ii) Painting is not a portrait
iii) Painting was published somewhere prior to 1957

B) Present Lord X's on the basis that
i) copyright on painting was not transferred at same time as painting

I need to do a bit more digging. Have ordered copy of Lord X's will as you suggest may be a good idea. Its that transfer of ownership that bothers me as we really don't know the history involved. It is a possibility that painting was sold by Lord X to my relative during his lifetime, and if we find evidence to this effect ( ie a receipt) then my understanding is that copyright lies with present Lord X.

My gut feeling and family folklore is that the painting was a gift during lifetime/or bequest in will because of the sentimental nature of the item and the relationship between Lord X and my relative. We also possess a hunting horn inscribed as won by Lord X as a prize for best hound (1938). I can't imagine that any huntsman of that class and generation would pass on such items in anyway other than benevolently to whoever he felt would appreciate them most.

Thanks again
BobR

Bob, I think I agree with your analysis, save for the issue of whether the painting was published before 1957. In fact I think the relevant date is prior to the death of Lord X in 1962, but in any case if the painting was commissioned and the portrait of a hound does qualify as a type of work which could be subject to the commission provisions, then the publication aspect would not be something the artist's heirs could argue, as it only has a bearing on a whether a bequest by Lord X would or would not have also transferred the copyright automatically to your relative. If the copyright in the painting was Lord X's and the painting had been published prior to his death, the situation regarding who now owns the copyright would be the same as if it had been an ante mortem gift. One thing is clear, copyright would not have reverted to the artist's heirs because of any publication.
Many thanks for your interesting question, and subject to you not revealling any more private details about yourself, I hope you will update the forum if there any significant developments in the future.