Old commissioned portrait-copyright reverting to artists estate after 25 years

[Lou27]

Hi
Hoping you can help clarify as I can't find a specific answer after much research.

If a painted work was created in the 30's by an artist who died in the 60's, is it true that the laws of the time that it was created apply to that work today? Specifically, will the copyright (if it was assigned to the commissioner of the work by being a portrait) revert to the artists estate 25 years after the artists death- as the 1911 act implies?

Or do subsequent amendments to copyright law change the situation and extend the copyright to 70 years beyond the date of the artist's death and have copyright remain with the commissioner (or their descendents assuming the work doesn't change ownership by way of sale).
Kind regards
Lou

[AndyJ]

Hi Lou,

While you have asked a seemingly simple question, the answer is complicated I'm afraid. However if you just want the answer, skip to the final paragraph. What lies in between are the details for why the answer is what it is.

As far as defining ownership of copyright is concerned, the applicable law is the law which was in force at the time the work was made namely, the 1911 Copyright Act in the case you outline, unless a successive law explicitly changes the legal landscape which is to apply to a work already in existence.

Let's start by looking at what the 1911 Copyright Act says about the ownership of copyright in works which are commisssioned. This can be found in the first part of Section5

Ownership of copyright, &c

(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 plate or other original was ordered shall be the first owner of the copyright;

From this you can see that, ordinarily, the person who commissions the work becomes the first owner of the copyright. These words are important for what follows. Subsection (2) then goes on to talk about what the owner of the copyright may do by way of assignment, either in whole or in part, of the rights he owns. We need not look at them all, but we do need to look at what it says about the reversion of any rights which have been assigned. This is to be found in the second half of subsection (2) of section 5:

Provided that, where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him (otherwise than by will) after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

So this is where we find the fact that all assigned rights revert to the heirs of the copyright owner 25 years after the death of the author. However, this clause only applies to the case where the author of the work is also the first owner of the copyright, and as we have seen from subsection (1), this artist or author is not the first owner of copyright where the work has been commissioned, so this reverter clause would not mean that the rights reverted to the author's heirs. If you are only interested in this narrow aspect of whether the copyright reverts to the artist's heirs, you can now skip to the final paragraph. However if you also interested in how the subsequent Copyright Acts affect the copyright owner's (the commissioner's) rights, read on.

We now need to check the 1956 Copyright Act to see if this changed anything for works which were already in existence.

This time the ownership rules are to be found in Section 4. Subsection (3) provides a slightly different set of words regarding commissions:

(3) Subject to the last preceding subsection, where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and pays or agrees to pay for it in money or money's worth, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein by virtue of this Part of this Act.

Although the overall effect is similar to what the 1911 Act had to say about commissioned works, there is an absence of the words "first owner" in respect of the copyright; instead the commissioner merely becomes entitled to the copyright. This isn't particularly significant however. The rules on the assignement and licensing of copyright are shown in section 36 of the 1956 Act. This section takes a significantly different approach to the way in which rights may possibly revert to the former owner. Put simply, the law does not seek to set out hard rules about what rights may be assigned, for what territory, or for how long they may be assigned; it leaves it to the copyright owner to decide these things. There is emphatically no automatic reversion of the kind found in section 5 of the 1911 Act.

Next we need to know if these newer provisions were to apply retrospectively to assignments etc already in existence. The answer to this speciifc question is to be found in Paragraph 6 of Schedule 8 to the 1956 Act which says:

Proviso to s. 5 (2) of the Copyright Act, 1911 (referred to in paragraph 28 of Seventh Schedule):—

Provided that, where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him (otherwise than by will) after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

Once again we see that in the special situation where the artist (or author) is not the first owner of the copyright, this Proviso does not apply, and so although we need not read beyond the first 16 words, this proviso effectively says that new Act does not change the status quo ante, and the owner of the copyright may not make any new (ie after the new Act comes into force) assignment of an existing work which would overide the 25 year reversion which already existed.

Since the painter died in the 1960s the end of the 25 period following his death could have occurred around the time that the 1988 Copyright Designs and Patents Act came into force, so we need briefly to check once again to see if this altered the situation. The answer is to be found in paragraph 27 of Schedule 1 to the CDPA 1988. The short answer is that it didn't change anything as far as any earlier assignments were concerned, and the previous rules continued to apply with regard to any reversionary interests which may have existed.

So to summarise, because the artist was not the first owner of the copyright in the portrait which he painted, there would have been no reversion of rights to his heirs 25 years after his death. However, if the actual first owner of copyright (the commissioner) had made an assignment of rights, these might or might not revert to the first owner 25 years after the death of the artist in the 1960s depending on what wording was used in the asssignment, but the law did not mandate an automatic reversion where the first owner was not also the artist, and neither the 1956 Act nor the 1988 Act would not have altered this arrangement. The fact that the artist died in the 1960s means that the painting would have still been in copyright in 1995 when the 20 year extension of the copyright term came into effect, and so the first owner or his heirs continue to be able to exercise their rights until some time in the 2030s, assuming that they hadn't assigned them to a third party in the mean time. This time extension would have had no impact on any reversion timetable which the first owner might have chosen to include in an assignment of his rights.

[Lou27]

Hi Andy
Thank you very much for your comprehensive reply. Apologies for the delay-internet and log-in issues have prevented posting sooner.

Our situation is a little complicated in that said portrait was passed down in our family after being gifted from the original commissioner (but not specifically mentioned in any wills, and no record of assignment of copyright that went with the painting at the time- just don't think it would have been considered).

So I think it would be quite difficult to establish any personal ownership of copyright in this situation and probably just easier to accept the copyright being in ownership of the artists estate (now managed by a large international fine art publisher) when negotiating future publication and glossing over potential ownership of commissioner's heirs (who in this generation would probably have no idea about the existence of the painting, or any potential claims to copyright).
Otherwise I suspect the only people benefiting financially from any publication would be lawyers with any argument over copyright rights...
Thanks again
Lou

[AndyJ]

Hi again Lou,

As you say the portrait came into your family's ownership as a gift from the commissioner, I think it is reasonable to assume that the copyright transferred with the work itself, even though it did not form part of a bequest. There is a specific section of the 1988 Copyright Designs and Patents Act which covers the circumstances in which an unpublished work is transferred under a will or through the operation of general inheritance law, where no explicit reference to the copyright is made, and so I don't think it's a major stretch to see something similar applying in the case of a gift which was made during the then owner's lifetime.

However even if I am wrong about that, then the presumption must be that the commissioner's heirs own the copyright today, not the artist's heirs. Since you say the artist's estate is managed by a fine art company, I assume that the artist was relatively well-known and/or collectable. However since the copyright did not automatically revert to the artist's estate 25 years after his death, it would be up to the estate to provide evidence showing that at the time of the original commission it had been agreed (in writing) that copyright was not to pass to the commissioner in accordance with section 5(2) of the 1911 Copyright Act. Obviously I can't say how likely that would be, but you certainly shouldn't assume that the artist's estate has a valid claim.

I'm not sure if you are speaking hypothetically, or if your aim is to publish a reproduction of the painting. A painting itself cannot be 'published'
because even showing it in public does not amount to publication, so the reproduction right which forms part of the copyright owner's bundle of rights is really the only one we are concerned with here.

[Lou27]

Hi Andy
Yes, you're right this has all arisen as we're looking at the possibility of reproducing said portrait. Have approached art publisher/printer stating broad circumstances/provinance. They are interested, but cite that 1911 law clearly states that 25 years after the artists death all rights revert back to the artists estate.
So, its a question of whether to just accept this, or to politely question it, and how much value this holds/how much to invest in legal advice. And where to get it. My initial reading of the situation was that it was a bit less simple than they're making out given the commissioned aspect. However, we don't have a large legal team to call upon...
Obviously, they can't make any reproductions without access to the original work, so we have some control there. It just if we had IP rights as well we have more negotiating power when coming to an agreement. If IP rights potentially lie with a third party on some levels it just seems like opening another can of worms which might put the whole project in the 'too hard' basket!
But thanks for your help/comments
Lou

[AndyJ]

Hi Lou,

The art publisher is wrong. As the second part of Section 5 of the 1911 Act explicitly states "where the author of a work is the first owner of the copyright therein ...", and since the previous section clearly states that the person who commissioned the work is the first owner, the reverter provision does not apply.

I can understand why you might want a second opinion, given that this is just an online resource and clearly the advice offered here does not have the authority of proper legal advice provided by a solicitor whom you personally engage for the purpose. However I can quote from the two leading authorities on the UK law of copyright. The first is called Copinger and Skone James on Copyright, which on page 311 of the sixteenth edition, paragraph 5-1178 (i) it says:

The reverter only applies in cases where the author was the first owner of the copyright. The author may not have been the first owner where the work was made by him in the course of his employment or where the work was a commissioned engraving, photograph or portrait. The first owner of the copyright in such cases was at liberty to assign it for the full term.

The second authority is: The Modern Law of Copyright and Designs or more colloquially 'Laddie, Prescott and Vitoria', after its first editors. The topic is covered in paragraph 24.32 on page 1025 of Volume 1 of the Fourth Edition:

There are a number of limitations to Sch 1, para 27 of the Copyright Designs and Patents Act 1988 [which was a slightly modified re-statement of the text which appeared in section 5 of the 1911 Act*]. It does not apply where the author is not the first owner of the copyright and ownership in this context is determined by the rules laid down in the 1911 Act. This means that Sch 1 Para 27 does not apply where the author was employed to create the work or, in the case of an engraving, photograph or portrait, was commissioned to make the work for valuable consideration.

* Sub para 27(1) of Sch 1 to the CDPA 1988 says: "27(1) Where the author of a literary, dramatic, musical or artistic work was the first owner of the copyright in it, no assignment of the copyright and no grant of any interest in it, made by him (otherwise than by will) after the passing of the 1911 Act and before 1st June 1957, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of 25 years from the death of the author."