Albin Grau - Nosferatu

[beelzebomb]

I am trying to trace the current owner (if any) of the rights to Grau's promotional artwork for the 1922 movie, Nosferatu. I am at a loss as to where to look. research has shown me that Grau lived in Switzerland after the war and then died in his home country of Germany in Bayrischzell in 1971.The artwork was for Prana-Film in Germany, who are described as 'short lived' in Wiki and who I believe went bust shortly after Nosferatu came out in 1922 due to excessive publicity costs and the subsequent court action from the Bram Stoker Estate over copyright (Nosferatu was essentially Dracula with different names).
His art is not listed in the public domain as far as I can find. Any advice would be appreciated.

[AndyJ]

Hi beezlebomb,

You are right to try and track down an heir to Albin Grau for permission to use his artwork. Although there are plenty of examples of it around on the internet, I suspect most is not authorised. You may need to find a German researcher to find the heir. I note that the English Wikipedia entry for him says "Bayrischzell honours him to this day". Maybe a local museum there would be a good place to start.

I don't know if you looked at the German wikipedia page for Albin Grau, but it contains a few reference documents which don't appear in the English Wikipedia version and might be of help in your search:

Stefan Strauß: Albin Grau: Biografie und Œuvre, belleville, München 2014, ISBN 978-3943157024.

Kay Weniger: „Es wird im Leben dir mehr genommen als gegeben …“. Lexikon der aus Deutschland und Österreich emigrierten Filmschaffenden 1933 bis 1945. Eine Gesamtübersicht. Acabus-Verlag, Hamburg 2011, ISBN 978-3-86282-049-8, S. 213.

Loy Arnold, Michael Farin, Hans Schmid: Nosferatu. Eine Symphonie des Grauens. Belleville, München 2000, ISBN 3-933510-42-2.

Alexander Popiol, Raimund Schrader: Gregor A. Gregorius. Mystiker des dunklen Lichts. Esoterischer Verlag Paul Hartmann u. a., Bürstadt u. a. 2007, ISBN 3-932928-40-7.

[beelzebomb]

Thank you, no I hadn’t checked the German wiki. Though regarding "Bayrischzell honours him to this day“, I found what I hope is an ‘official’ email for the place and have emailed asking for info. If he has no heirs, does that mean the art defaults to public domain?

[AndyJ]

Hi beezlebomb,

No, copyright will continue to exist until 2042 (ie 70 years after the end of the year in which Grau died). Under German copyright law, copyright can only be transferred by a testamentary instrument (ie a will) - see below - or if the person died intestate, by the operation of the state's intestacy laws. I know virtually nothing about Germany's intestacy laws, so if he died without an heir, or died without leaving a legal will, I'm not sure who would have inherited his copyright. I would be unsurprised to find that Bavaria's laws on the subject will be different to those which apply in other Länder within the German Republic. The one thing I can say is that his work didn't enter the public domain.

Here is the text of articles 28 - 30 of the German Urheberrechtsgesetz of 1965, as amended

Section28 Inheritance of copyright
(1) Copyright shall be inheritable.
(2) The author may assign the exercise of copyright to an executor by testamentary disposition. Section 2210 of the Civil Code (Bürgerliches Gesetzbuch) shall not apply.
Section 29 Transfer of copyright
(1) Copyright is not transferrable, unless it is transferred in execution of a testamentary disposition or to co-heirs as part of the partition of an estate.
(2) The granting of rights of use (section 31), contractual authorisations and agreements based on exploitation rights, as well as contracts on moral rights of authors as regulated under section 39 are permitted.
Section 30 Author’s successor in title The author’s successor in title holds the rights to which the author is entitled under this Act, unless otherwise provided for.

It is worth noting that the word Urheber in the Act's title means author - so 'author's rights law' and this is an important distinction as in continental Europe the emphasis, within what we in English call copyright, is actually on the rights of authors. So what happens to those rights, especially where the honour of the author is at stake, is very important.

[beelzebomb]

Well I am getting nowhere fast on this hunt. Various Facebook specialist groups suggested BFI as their publishing arm put out a book a few years back with Grau’s work included (sadly the author died last May). Aside from that I’m getting zero response or acknowledgment from anywhere. The fairly recent Eureka film restoration simply credits Grau for the cover art but with no hint at who now owns it. If I simply can’t find ownership can this be licensed as an orphan work or am I misunderstanding that terminology?

[AndyJ]

Hi beezle,

In theory there's nothing to stop you using the UK orphan works licensing scheme to cover a foreign work, but that would only cover you for use of the licensed work(s) in the UK. So if you intend to do something on the internet, there could be problems if a German owner of the copyright came forward. There is a EU-mandated orphan works scheme but it can only be used by large institutions like museums and archives to license their own holdings, and in any case that system doesn't include graphical works, so that's a dead end.

The hoops you need to go through to meet the diligent search test for the UK scheme are set out in this guidance note (note this is in Open Document Format, so it may not open automatically in your browser) and given the provenance of the Grau works it will probably involve a lot of research amongst the German sources, such as art and film institutes dedicated to modern German works. Unless you speak reasonable German, you may need to hire the services of a German researcher. So before doing any of that, it would be a good idea to chat with the UK Intellectual Property Office team (orphanworkslicensing@ipo.gov.uk) to find out what they would expect by way of documentary evidence that you had completed a sufficiently rigorous search to get a licence.

[beelzebomb]

Well this is getting very frustrating. No one will even reply to my contact regarding copyright! I have reached out to the most obviously recent user, Eureka! Films, who's restored blu-ray of Nosferatu uses Grau's artwork on the cover (credited) - they have ignored my email, plus a couple of requests on Twitter and a message via Facebook. I have had no response from the German minister for the arts, nor from Bayrischzell, the German town which apparently still reveres Grau.
The Deutsches Filminstitut & Filmmuseum were kind enough to actually reply and suggested the Friedrich Wilhelm Murnau Foundation who I believe Eureka! collaborated with - 2 emails later and no reply from them either. Tracing authors (who are still alive) who have written on the subject has been quite hard to do. I did get a reply from Orphan Works Licensing Team explaining how they work.
My conclusion is leading me to believe that - no one knows! And that the continual ignoring of my emails might - in my opinion - be to avoid each organisation incriminating themselves in their usage of Grau's artwork.
The wider problem of course is that the movie itself, Nosferatu, was ordered to be destroyed by a court as it infringed the copyright of Stoker's Dracula - it's only that one copy survived when it wasn't meant to that we have the movie today. So the movie itself seemingly sits in a murky area. There is a public domain version, but the fully restored (with new title boards) Eureka! version is vastly different in quality to the PD version.

[AndyJ]

hi beezle,

Yes, I would agree with your assessment that nobody really knows the answer and they don't want to commit themselves. In the circumstances, I would have thought that what you have done so far would constitute a diligent search as far as the UKIPO was concerned, if you wanted get to an orphan works licence.

I don't think you've said exactly what you want to do with this artwork, but it may be that one of the fair dealing exceptions, for example for research or criticism/review, might well cover you, provided that you don't use more Grau's work than is strictly necessary for your purpose. German copyright law is more restrictive than the UK law when it comes to exceptions, but generally speaking it also recognises these two categories of exception (see articles 51 and 53 of the Urheberrechtsgesetz 1965 as amended).

[beelzebomb]

I tend to find old things and digitally restore them and sell them as high quality art prints. I have a piece of Grau work which appeared as an advert in an old now defunct film magazine in Germany (1921 I believe) which I've restored to a high quality. So it would be commercial use.

[AndyJ]

OK thanks, you probably did mention that in the other thread. And as you have realised the commercial nature of the project would mean the exceptions I mentioned are of no use to you. But an orphan works licence would be ideal for commercial purposes in the UK. However given that the copyright owner, if there is one, is likely to be German, that would still leave you open to a claim in the German courts.

[beelzebomb]

Would restricting sales territory to selling in places other than Germany avoid that issue? Though that would be a shame to end up doing all things considered.

[AndyJ]

Hi beezle,

Yes definitely. Infringement claims can really only be effective if the claimant can show there has been 'damage' in the territory
where the claim is brought. If you take specific steps to exclude Germany or German customers from being targeted by your advertising with geo-fencing or similar techniques there is a good chance that will reduce the probability a. that the German owner gets to find out about your sales, and b. of them being able to take action in the German courts. See this CJEU case where the opposite circumstances applied*, that is say a specific country was targeted, and so copyright was said have been infringed there. To save time you really only need to read the penultimate paragraph of the judgment.


* Note that this concerns a criminal case, so not all the circumstances are similar.

[beelzebomb]

So here I am, still attempting to find an answer to this to the point it’s become something I can’t seem to give up on. I’ve since found a family tree site that has a listing for Grau’s death including info on wife - tho the few relatives listed are deceased. I reached out to the one person who updated the listings who resides in USA. No reply. FW Murnau association came back to me with a couple of suggestions but no luck here either. I’ve also tried various scholars who have shown an interest in the subject. I deduce from a response regarding registering an orphan work that it would cost me around £500 for a commercial license, but this would only be effective in the UK.
Now I’m wondering if his work should be public domain whether listed as such or not and whether I can just use my interpretations of the art anyway. The following info (I think all regarding the USA) is interesting.

This flowchart suggests all works published before 1923 are ‘expired’ & thus PD.
https://www.sunsteinlaw.com/copyright-flowchart

This site says: “Any work published before January 1, 1923, is in the public domain.”
https://artrepreneur.com/journal/artbu ... e#comments

Finally, here the advice is: “In the US, these include all works published before 1923 and works published through 1977 without a copyright notice.”
https://penandthepad.com/find-out-some ... 50720.html

So would I perhaps be able to be fairly confident using art commercially that was published/shown in 1921-2 as far as the USA goes, considering the USA is the king of litigation & the one to be especially wary of? Is the ‘1923’ pivot point purely only relevant to the USA?

[AndyJ]

Hi beezle,

I don't think American copyright law is going to be much help here. Although Grau's artwork, as distinct from the film, is probably in the public domain in the USA, it's not actually for the reasons given in those links. However the reason is not really important here as whatever the situation in the USA, it won't effect the copyright status of the artwork in Germany which is where it was first published. This makes Germany the country of origin for copyright purposes.

As Grau died in 1971, the copyright term under German law which applies is the lifetime of the author plus 70 from the end of the year in which he died. That applies throughout the EU, and is also the case in the UK and Switzerland. If we assume that any potential heir is going to be a German citizen, then that is where you are most likely to be sued if this person decides to do that. Only if you were able to ensure that your copies were only available in the USA could you rely on the public domain status of Grau's work there.

[BROADBENTIUS]

Hi, this thread is very helpful. I have an update in that sense that I've found that the owner of a lot of Albin Grau's artwork is a chap called Ronald V.Borst who bought a lot of it. I've had absolutely no luck tracking him down though. He published a book called Graven Images in 1992 and I've emailed the publisher to see if they'll send me his details. https://nosferatu.fandom.com/wiki/Graven_Images

I'm a picture editor and tracking down obscure images to clear rights is my bread and butter, but even this has me stumped