Template talk:PD-US-statue/proposal

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  • There is no freedom of panorama in the United States, so the only photographs of sculptures allowed on Commons would be works in the public domain. Unfortunately, this is a legal minefield. There is no standard pma+70 rule for the United States, so a work from an author who died in 1937 might very well be copyrighted for 95 years, or more. With sculptures this problem is especially acute for the following reasons:
  1. There is no standard definition in U.S. law for when an older statue is considered published.
  2. There is no central place online to search for copyright registrations and renewals. Even paying a researcher to physically visit Washington D.C. and look through the records isn't foolproof, because a) not finding a record could just be a result of not looking hard enough and b) looking but not finding the record through a copyright search only establishes a defense to a copyright suit, it does not establish the item is public domain.
  3. Most people aren't used to the idea they can't take a picture of something in public, and our current ad-hoc system of dealing with U.S. sculptures may be seen as some as unfair and can lead to confusion.
  4. There are two broad solutions to this problem but they are mutually exclusive. a) if we treat all older sculptures as unpublished, then we can apply pma+70 to the works (except if they have a copyright registration). If the author is unknown then we must use the 120 year rule in U.S. law for unpublished, anonymous works, meaning we'd have to go back to before 1888 in some cases. b) If we treat the works as published, then anything before January 1, 1923 is safe, as well as works which were never registered or renewed. But then you run into the problem where the copyright registrations are nearly impossible to find.
  5. There is a hybrid solution (mentioned at COM:FOP United States) that perhaps works are published, unless photography is prohibited (so installation in a museum with strict rules against photography would prevent publication). Again this raises more questions. We'd still have to decide, ad-hoc, which works were considered published or not (should be easy for works publicly installed in a park or plaza) and whether or not they bore a copyright notice and/or have been registered. -Nard the Bard 21:13, 12 October 2008 (UTC)[reply]


  • Agreed that fair use seems to cover lots of situations, but probably not some very commercial ones -- there do seem to be occasional court cases. Does make it hard to understand.
  • As mentioned at COM:FOP United States, the rules prior to 1978 say that for a work exhibited in public for all to see without any attempt to restrict photographs, it was considered "published". This would definitely be true for works permanently put up in public. In those cases, PD-US, PD-no_notice, and PD-US-not_renewed would apply. Treating them as unpublished seems to go against common sense, and case law. Works publicly exhibited without restrictions is going to be really hard to determine... virtually impossible I would think, though maybe newspaper accounts may provide some evidence in odd situations. I wonder if old museums had photography restrictions, but that is also hard to determine. Permanent sculpture in public is a reasonably safe line though.
  • Determining whether a copyright notice exists is hard to verify, for sure. The 1909 Act was pretty specific in the need for a notice to be there on all copies, so it would have to be present on an "accessible" portion. It had to have the word copyright, the abbreviation "Copr.", or the © symbol, and the name or initials of the artist (if initials, the full name must be somewhere else nearby). This is spelled out at s:United_States_Code/Title_17/1976-10-18/Chapter_1/Sections_19_to_21. Failure do do that meant it was an invalid notice, and copyright was lost -- courts seem to be really strict on that in case law. Verification, without looking over the statue very carefully, is really hard. Do we accept people's word for it, if they claim they looked? One option is the Smithsonian Art Inventory Catalog, which in some (but not all) cases seem to thoroughly document all inscriptions, including if copyright was mentioned. Can we take that as enough evidence? In some cases, it explicitly mentions "unsigned", and those I think should qualify.
  • Renewals are hard, as I am not aware of pre-1978 renewal records for art being online. Gutenberg did it for books and periodicals, but I think only the 1950 and 1951 years included art renewals (which could help for statues put in in 1923 only). The Copyright Office does have renewals for >= 1978 records; if we can't find anything with searches there, that may be enough evidence in some situations, when we know a work was copyrighted in 1961, 1962, or 1963. If someone actually pays for an actual Copyright Office search, that should be enough -- if it turns out to be wrong, we can fix things up then -- but that is plenty good-faith reason to assume so. I'm not expecting that to be true very often though. ;-)
  • Statues put up from 1978 through 1988 are somewhat similar, but would follow the 1976 Act's new definitions on publication and notice. Missing notices may still be OK on these, as the 1976 exceptions may not apply (unless it was explicitly registered, but those we can search for online). Since 1989, copyright is automatic. Publication is definitely more vague.
  • There is also the issue that before 1978, case law seems to say that copyright was transferred with a purchase/commission unless arrangements were explicitly made otherwise (from 1978, copyright must be transferred explicitly in writing, otherwise there is no transfer). Carl Lindberg (talk) 23:01, 12 October 2008 (UTC)[reply]
  • Couple more points -- PD-Old sculpture is going to be really rare (determining something was not published is even harder); I'm not sure we should spend lots of space on a big tag trying to discuss that. Maybe just give the definition of published for pre-1978, and say usual US law applies. Permanently public statues would be considered published; before 1923 is fine and anything else would need evidence (either for no notice, not renewed, or 70-pma-not-published).
  • Also, 17 U.S.C §106A (moral rights) applies to statues, so please document sculptor if known. Carl Lindberg (talk) 23:18, 12 October 2008 (UTC)[reply]
    And if the uploader doesn't know the sculptor, he or she should invest some time trying to research the sculptor :-) Lupo 07:24, 13 October 2008 (UTC)[reply]
A few caveats on this:
  • The presumption of a copyright transfer is for commissions only, not for other purchases! Commission = Party A tasks/hires/commissions a sculptor to do a sculpture, then pays him or her and becomes the owner of the work. In this case, we may assume the copyright is held by Party A if the sculpture was commissioned before 1978. But in other purchases (party B subsequently buys the sculpture from A, or A donates the sculpture to B, or sculptor creates sculpture on his own initiative and then sells/donates/otherwise gives away the sculpture), there is and was no such implicit assumption of a copyright transferral to the new owner of the work. And just so we have the pertinent links in one place: this is based on en:Community for Creative Non-Violence v. Reid (full U.S. Supreme Court decision: Community for Creative Non-Violence v. Reid 490 U.S. 730 (1989); section II(A), paragraph starting with "In 1955").
Okay -- I was also looking at en: Copyright_Act_of_1976#Transfer_of_copyright which states there were cases which went both ways on straight purchases. Carl Lindberg (talk) 07:33, 13 October 2008 (UTC)[reply]
Mmmmmh, so it does. I'd like to see a source and an identification of that case. Lupo 09:11, 13 October 2008 (UTC)[reply]
I don't think we should put much stock into this. There are up to three chances under the old act for an author or his heirs to recoup the rights to a work[1] (if the author dies during the initial copyright term, for instance). So unless the work is PD for some very obvious reason (no notice, or work of the federal government), I can't see any case where we'd argue a copyright claim was invalid because a statue was commissioned. -Nard the Bard 14:55, 13 October 2008 (UTC)[reply]
I don't quite understand this, Nard. Where do the heirs enter the picture? We were talking about a presumption that the (first) sale of an object also conveyed the copyright on that object. Anyway, a source has been added: the case was Pushman v. New York Graphic Society, 39 N.E.2d 249 (N.Y. 1942). But indeed we cannot rely on it: first, that was abrogated by statute in 1966 in New York, second, it applied to an unpublished work covered by New York State common law, third, not all U.S. states followed that doctrine (which is at odds with section 27 of the 1909 federal copyright act for published works), and fourth, it's entirely unclear how it would be or was applied (see Forward v. Thorogood 985 F.2d 604 (1993) for a case rejecting the Pushman argument). Comment left at en:Talk:Copyright Act of 1976#Transfer of coypright. Lupo 23:48, 13 October 2008 (UTC)[reply]
Yes but the copyright could revert to the heirs. So it is not enough to presume that the person who bought it did not renew it. -Nard the Bard 01:36, 14 October 2008 (UTC)[reply]
Ah, ok. You were a step ahead of me :-) Lupo 08:42, 14 October 2008 (UTC)[reply]
  • Indeed the crucial question is do we just take an uploader's word? Most people don't even care to check whether there's any signature on the sculpture they photograph. (Witness the many sculpture images we have that lack any information at all.) Some sculptures are not even accessible to be checked in place (fenced off, or placed in inaccessible locations). Many sculptures are marked in the back, at the bottom somewhere; it's easy to forget to check. So I would insist on a verifiable reliable source that says that there is no notice on the sculpture. If the Smithsonian explicitly says "unsigned", that's fine with me. If the Smithsonian has a detailed record with a detailed description and giving inscriptions and doesn't mention copyright, we might also accept this as a sign on "no notice". But if the record at the Smithsonian has no description/inscription info, then we cannot take this as a sign for anything. If the Smithsonian explicitly mentions a copyright, that's definite proof (in the negative sense from our perspective).
  • Copyright notice: was it sufficient if the model had a copyright notice, or does the finished sculpture need to have a notice? What if the model does have a notice, but the sculpture doesn't? Note that in the Chicago Picasso case, part of the reason for the decision in favor of PD was that the maquette didn't have a notice and was published without notice. Lupo 07:24, 13 October 2008 (UTC)[reply]
Every single published copy had to have a notice. See the first sentence of the Cotter paper :-) The 1976 act allowed more leeway for mistakes. The 1909 Act was quite a bit on the side of potential users of the work; it had to be made pretty obvious to them if a work was copyrighted. Technical mistakes in the form of the notice (e.g. ambiguous author) also invalidated it. Carl Lindberg (talk) 07:33, 13 October 2008 (UTC)[reply]
If the model approved by the artist had had a notice, and the final work had none, the artist would perhaps have been able to sue United States Steel Corporation for failing to do its job properly, and the steel sculpture would be considered an unauthorized copy. Teofilo (talk) 07:02, 17 October 2008 (UTC)[reply]


When it was published...[edit]

As far as I'm aware it's not been settled in court... however, I think it would be safe to assume the date that the statue was "unveiled in it's permanent display location" would be the date of publication. Having a statue sit around in a public location for years not count as "published" it seems silly. --J.smith (talk) 00:20, 13 October 2008 (UTC)[reply]

This PDF document (paper by a Thomas Cotter) goes into the topic in excruciating detail. The consensus apparently tended to follow s:American Tobacco Co. v. Werckmeister, which agrees with your point above. The 1978 definition of "publication" leaves open some weird loopholes though... I've seen some speculation that it could now be possible to put up in public but not "publish" it. The date it was unveiled would be the last possible date of publication, but it of course could have been registered for copyright earlier, or exhibited (temporarily) to the public without any attempt to prevent photographs (I'm not sure how that could be "proven", but sometimes unexpected types of evidence can be presented) . Also, sometimes there were multiple castings made of some statues; if the first version was put up pre-1923 then all copies are PD. Carl Lindberg (talk) 00:58, 13 October 2008 (UTC)[reply]
  • Maybe we could take a cue from the FOP laws around the world and apply a common sense approach, ie publicly installed works are considered published, and works not publicly installed are considered unpublished, absent indication to the contrary. I'd hate to run afoul of some large institution a work was installed in that claims the rights to the work. -Nard the Bard 02:51, 13 October 2008 (UTC)[reply]
    • Specifying something is "unpublished" can change the rules as well (sculptors who died more than 70 years ago), and we may declare stuff PD before its time as well. I think we should keep this tag to only works permanently installed in public (like most other FOP laws); that seems like a safe line to be published, and those are really most of the situations were this confusion can occur. For other situations, I would just let people provide evidence as to why it is PD per U.S. rules, just like now. The 1923 part is also clear; but the big one (to me) is what kinds of verification to accept that something does not have a copyright notice (which will probably be most of them). Renewals require a search I think, and other than post-1978 records and a couple of other years are not accessible online. For a big fun one, apparently Mount Rushmore is documented as unsigned -- which to me is a clear indication of {{PD-US-no notice}}. What do you think? Carl Lindberg (talk) 04:17, 13 October 2008 (UTC)[reply]
Wouldn't it be... PD-Gov? It was built bye an artist and craftsmen hired by the government. Right? My Rushmore history knowledge is a bit sketchy.
It's funny that you mention it... I've never thought of Mt Rushmore as being a copyrightable work of art. --J.smith (talk) 04:31, 14 October 2008 (UTC)[reply]
Probably not PD-USGov. The sculptor, en:Gutzon Borglum, was apparently not a U.S. government employee. It's unclear to me, but it appears he was commissioned. His work would've been a normal work of art, and if he had placed a copyright note on it, he would have been the initial copyright holder. Arguably (see above) his copyright would have been transferred to the U.S. government (which can and does hold such transferred copyrights), and it would then be up to the copyright holder to allow (or not) reproductions of the work to be made. Whence Carl's remark about "no notice". Lupo 08:05, 14 October 2008 (UTC)[reply]
An argument can be made for PD-USGov... it was a government project from the beginning, actively managed by the National Park Service for a few years, employed many people to do all the carving, and provided all the funding. It is not completely clear though, which makes these things hard -- does the government still own a copyright which has been transferred, or was it PD-USGov from the beginning? Should we just allow photos of works where the government itself would own the copyright (if it exists at all)? I bet the government itself wouldn't know in many cases, as I doubt the need to determine which is which has ever come up. Should we do the same for foreign sculpture owned by foreign governments? Mount Rushmore is PD one way or another, but other situations are much much harder. People would normally expect to be able to do what they want with such (government sponsored) photos, but there are circumstances where copyright is retained (vietnam memorial), and lawsuits have happened -- though in most of those that I have seen, there are also 3-D reproductions, which are clearly copyright violations. Carl Lindberg (talk) 16:28, 15 October 2008 (UTC)[reply]
  • A sculptor sells his statue to a private owner, who chooses to put the statue in his private garden, surrounded by a high brick wall. 5 years later, the owner dies, leaving a will by which he donates the sculpture to the City, and the city government decides to move it to a public square, downtown. The artist, who is still alive, who had enjoyed copyright protection until then, loses his copyright instantly, without any compensation ? Teofilo (talk) 15:59, 16 October 2008 (UTC)[reply]
    • Legal publication only occurs with the consent of the author/copyright holder, this is a good question we need to address. (as the 1909 act stated: "That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.") With most public-dedicated sculptures there is plenty of press (because politicians and artists alike love to be seen as benefactors of the public). It also requires actually registering the copyright in order to enforce any claims. (Dr Martin Luther King's estate successfully used this approach with his "I Have a Dream" speech when it was published without consent). In the case of unauthorized publication, I think it would depend on a) if the copyright was actually ever registered, and b) the amount of time that passed between the publication to now. If it's been a very long time then the legal doctrines of laches or estoppel would probably apply (no, you cannot lose a copyright by not enforcing it, but the courts can say that since the time since the violation occurred has been so unreasonably long that enforcing a claim on any existing users of the work would be unfair). I suppose that in cases where there's no proof (press coverage) the sculpture actually was publicly dedicated, we could apply the rules for unpublished works (in which case it's only ok if the author died more than 70 years ago). -Nard the Bard 17:54, 16 October 2008 (UTC)[reply]
Yes this is quite clear. Thank you for your answer. Teofilo (talk) 21:05, 16 October 2008 (UTC)[reply]
What I understand from the text of the law is that a "notice" is required only on a "copy". The original of a work, the manuscript of a novel, or the original of a painting or a sculpture is not a "copy", and as long as the artist has no intention to sell more than one item (or at least two similar items), the original can be registered under section §12 so that section §10 can be ignored. According to wikt:copy, a copy is the result of copying (confer original); [...] An imitation of inferior quality [...] ; A printed edition of a book or magazine. If the artist sells only the the original of a work, and allows no copy to be made, even if that original is unveiled to a large public, he can still enjoy the protection provided by §12, because the work is not "reproduced". Teofilo (talk) 06:38, 17 October 2008 (UTC)[reply]
Under current law, the original is in fact a copy (the first copy) per the definition in 17 U.S.C. "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. Anything copyrightable is either a "copy" or a "phonorecord". At any rate, my reading of the older law is that a statue put up in public has no restrictions on anyone making copies of it (unless there is a visible copyright notice), so without a notice it is presumed that authorized copies can exist (which may be sold). The purpose of the notice was to inform potential infringers, not just to obtain copyright protection, and existing copyright protection was lost if notices were omitted. From Patry's Copyright Law and Practice Google Books link ("Notice Under the 1909 Act", page 421): the omission, imperfection, or misplacement of the notice resulted in loss of protection. A proper notice was indispensable not only when securing a copyright by publication of the work; preservation of copyright required that "such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor". In other words, existing protection was lost without them. If a notice was accidentally omitted, s:United_States_Code/Title_17/1976-10-18/Chapter_1/Sections_19_to_21 could apply, but accidental omission on the one public copy would be hard to argue, as the exceptions were only for when a relative small percentage of copies were missing the notice (and for a single statue, that would be 100% of copies). From the same book, page 417: The rule under the 1909 act for works of art and other exhibited works would seem to have been that where the work was exhibited or distributed in a way that made it available to the public for copying, a general publication occurrred absent restrictions. Of course, loss of protection could be prevented by affixation of a proper notice. The section you mention was more so that authors of things like screenplays could obtain federal copyright protection, even though the work would never be published (and it would also modify the Library of Congress deposit requirements which were required for published works which were sold). If such a work was later published without a copyright notice, the copyright was at that point lost. Carl Lindberg (talk) 17:10, 17 October 2008 (UTC)[reply]
  • I am not sure I understand well the meaning of "Copyright registrations for statues in the United States may be looked up at the Smithsonian Art Inventories Catalog". For example, the catalog mentions the presence of the copyright symbol in the "inscription" field of the catalog entry of the "Indian of Skowhegan", a sculpture by Bernard Langlais, 1969, but I can't see the registration number anywhere. If the copyright holder had affixed the copyright symbol, but for some reason forgotten to make a registration, we would not be able to know it by only looking up in this catalog. Teofilo (talk) 21:05, 16 October 2008 (UTC)[reply]
    • It suffices that there is a © notice. And indeed its entry, one of the better documented ones, mentions a copyright notice with the date "June 1969". If the copyright holder then didn't register the copyright, that didn't forfeit the copyright. Registration under the 1909 act was optional until the last year of the first term. Had the sculpture been published before 1964, registration would have been mandatory for renewing the copyright. And registration was a prerequisite for starting an infringement suit during both terms. But for works published 1964 or later, renewal was automatic anyway. Lupo 22:09, 16 October 2008 (UTC)[reply]
Yes, I know, here is what I found on this site : Skowhegan Indian , Skowhegan, Maine. On June 21, 1969 U.S. copyright registration #GP73844 was first registered. This copyright pertains to the Indian in both physical and image form. So...if you are interested in using the image of the Indian, please contact the Chamber in order that the policy and procedure established for usage may be followed and recorded. Concept and personal construction by Bernard Langlais. Don't you think "Copyright registrations for notices inscribed on statues in the United States may be looked up at the Smithsonian Art Inventories Catalog" would be a better wording on Template:PD-US-statue/proposal ? Teofilo (talk) 22:27, 16 October 2008 (UTC)[reply]
Of course it should read "Copyright notices". It should also say "in some cases". And the tag name should be "PD-US-sculpture", not "-statue". And it should be simplified. But we're not there yet; there are still some open questions. Lupo 22:35, 16 October 2008 (UTC)[reply]

Some real cases[edit]

Brookgreen Gardens is a nice collection of photos of U.S. sculptures that exercise nearly all the cases to be considered. See its talk page, too. Lupo 11:47, 15 October 2008 (UTC)[reply]

Publication revisited[edit]

We've established that for statues erected before 1978 (i.e. under the old 1909 Copyright Act), erecting a statue such that it was accessible by the general public and without explicit prohibitions on making reproductions (such as photos) did constitute "publication".

At Talk:Brookgreen Gardens#Copyright issues, the question arose whether statues erected 1978 or later would also be published under these circumstances. I don't think so. The definition of "publication" is in 17 USC 101. It says:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
To perform or display a work "publicly" means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The accompanying House Report 94-1476 says:

"The definition clears up the question of whether the sale of phonorecords constitutes publication, and it also makes plain that any form or dissemination in which a material object does not change hands—performances or displays on television, for example—is not a publication no matter how many people are exposed to the work." (p. 138)

and

"It should be noted that, under the definition of “publication” in section 101, there would no longer be any basis for holding, as a few court decisions have done in the past, that the public display of a work of art under some conditions (e.g., without restriction against its reproduction) would constitute publication of the work. And, as indicated above, the public display of a work of art would not require that a copyright notice be placed on the copy displayed." (p. 144)

The phrase "as indicated above" refers to this:

"The notice requirements established by these parallel provisions apply only when copies or phonorecords of the work are “publicly distributed.” No copyright notice would be required in connection with the public display of a copy by any means, including projectors, television, or cathode ray tubes connected with information storage and retrieval systems, or in connection with the public performance of a work by means of copies or phonorecords, whether in the presence of an audience or through television, radio, computer transmission, or any other process." (p. 143)

I'll do some serious reading next week of a variety of sources I've collected, but it appears to me that this is a very clear indication of the intent of Congress when it passed the 1976 law that statues since 1978 were not "published" by being erected and didn't need a © notice. (If, however, replicas of the statue were offered for sale to the general public, that would've been publication and a lack of a copyright notice might have placed the statue in the public domain.) Thus we'd need to consider post-1977 statues as "unpublished" by default. Lupo 10:09, 16 October 2008 (UTC)[reply]

Documentation of separate castings would muddy things as well, if those were publicly displayed. An unpublished-by-default assumption is probably a good idea for those though. As for material... I just ran across this site today, which has a ton of case law on various aspects. I haven't found much, other than copyright notice details, which directly pertains to this topic though (yet anyways, haven't looked through a lot of it). Carl Lindberg (talk) 06:08, 17 October 2008 (UTC)[reply]
A statue installed in a public place for 20+ years is unpublished? That seems mighty silly. I think we are completely misinterpreting the intent of the law.
Lets look at the process of creating a statue. Most of the time, they artist creates a model of the finished product... or they sketch out the design... or they create the mold before casting the statue. I think in almost every case the statue is a derivative-work of some unpublished prototype. J.smith (talk) 19:28, 17 October 2008 (UTC)[reply]
We do need to follow the law's definition... it feels a bit tortured as it was trying to come up with a definition applicable to books, films, phonorecords, and other diverse copyrightable material, and probably to counteract some court decisions they disagreed with. The part about multiple copies (which I don't see in the text of the law, but maybe there was a court case) does appear to apply for sculpture though. In Circular 40 [interestingly, the HTML version is unavailable because it is being "revised"], the Copyright Office says:
The copyright law defines “publication” as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution or public display also constitutes publication. A public display does not of itself constitute publication.
A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, such as through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published.
When the work is reproduced in multiple copies, such as reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display.
That does say that a public statue may be considered "unpublished". You're right about the multiple castings though; if there is another one in existence, then giving (or even just offering) one casting to another group to put up in public would seem to qualify. I had previously run across a David Nimmer paper which notes the two extremes -- a painting offered briefly for sale then retired to an attic may be "published" (which contradicts the "multiple copies" note above), while a statue put in public in a busy city could still remain technically "unpublished". Congress did seem to want to change the previous case law definition in respect to displayed works of art, though it still is not clear if that was more aimed at temporary displays rather than permanent ones. Bronze sculptures are (I think) typically cast from an earlier model or mold... would that be "multiple copies" or would there need to be at least two actual castings made? Seems like it would probably mean the latter. Though, if toy model versions are made with authorization (especially for sale), that would be publication I would think. Carl Lindberg (talk) 04:20, 18 October 2008 (UTC)[reply]
I think toys are bit more problematic. I seem to remember the little rubber Donald Duck I had as a kid had a copyright notice on the bottom of his foot. An ordinary picture of most toys wouldn't show a hidden copyright notice. -Nard the Bard 18:39, 25 October 2008 (UTC)[reply]

Category:Hirshhorn Museum's Sculpture Garden[edit]

I think some verifications should be made for the statues in that category. I have doubts in particular for the 3 pictures in Category:Sphere_No._6. en:Arnaldo Pomodoro says that he "currently lives (...) in Milan". The information at the top of the category page is as follows :

English: Sphere No. 6 (1963-65). Made out of bronze by Arnaldo Pomodoro, gift of Joseph H. Hirshhorn, 1966. Inventory number 66.4094.

I guess that the "no notice (before 1978)" theory can't apply here because this is not in a street, but inside the precincts of a museum.

Teofilo (talk) 12:25, 25 October 2008 (UTC)[reply]

The no notice would apply -- the Hirshhorn is on the National Mall, and during the day there is basically free access. If published in the U.S. before 1989, the sculptor's country wouldn't really matter. On the other hand, I would bet that much of the sculpture was put up after 1978 (the museum opened in 1974), so there are most probably issues there. And on the third hand, as a Smithsonian museum, the entire idea is free access to all (entry to the museums is free; largely funded by the federal government) so I don't know if that would imply anything about expected ability to use the photos (that is one of the touchy questions). As for that particular sculpture... if it really is Sphere VI, then there is another copy at Princeton which was put up in 1969 and is unsigned, so that one is probably OK. Carl Lindberg (talk) 16:47, 26 October 2008 (UTC)[reply]
And a third one is at Christian Theological Seminary, Indianapolis. The fact that two or more similar sculptures were cast could be interpreted as meaning that it was "published". But was it a full fledged publication or a "limited publication" per Estate of Martin Luther King, Jr., Inc. v. CBS, Inc./Opinion of the Court ? Did the museum seek a permission or a license from the artist before it installed the sculpture in the garden ? We would also need to have some level of certainty that it was cast for the first time in the United States (which seems more economical than casting in Italy and making the sculptures come all the way by boat, and could be connected to the fact that Pomodoro spent some part of his life in the United States), and not "published" in some way earlier in Italy. Teofilo (talk) 12:01, 27 October 2008 (UTC)[reply]
The definition of "publication" was different before 1978 -- it did not require multiple castings. If it was exhibited "for all to see" without any restrictions on photography or other copying (which is guaranteed if it was permanently installed in public) then it was generally published (and not a limited publication). If the artist wanted copyright protection, they only had to put a proper copyright notice on the sculpture (or pedestal). I partially take back the sculptor's country statement -- if the work itself was foreign, then copyright may well have been restored. However, since Pomodoro was living and working in the U.S at the time, and the sculpture was first "published" there, then the U.S. is the country of origin for that one (if this is indeed a copy of that Princeton one). Carl Lindberg (talk) 15:27, 27 October 2008 (UTC)[reply]
Curatorial info from the museum's website : "Provenance : Jh Purchased From Marlborough-Gerson Gallery, New York 1965". When did that work's status change from "unpublished" to "published" ? When the gallery put it on display in New York ? When Joseph Hirschhorn bought it in 1965 ? When Joseph Hirschhorn gave it to the museum in 1966 ? When the museum put it in the garden in Washington ? Teofilo (talk) 21:52, 27 October 2008 (UTC)[reply]
If the gallery had it on display for sale, and not just for a private showing, then it seems that would be the moment of publication. -Nard the Bard 23:34, 27 October 2008 (UTC)[reply]
It would not have been a lawfull publication if the gallery did not secure a written permission from the artist. Teofilo (talk) 06:09, 28 October 2008 (UTC)[reply]
The artist would have had to made this condition explicit upon the sale, I'm pretty sure. If the artist took no action to make it clear, then I think permission was implied. All he needed to do otherwise was to put a copyright notice on it before selling it. Carl Lindberg (talk) 14:52, 28 October 2008 (UTC)[reply]
If one copy is published, then all copies are published. It is the same work. The Princeton one went up in 1969, so it was published then. If this one is a unique work (different enough to be a different work... odd if it has same exact name) and the gallery did not have any kind of photo restrictions, then it would have been published at the gallery (verifiability is kind of difficult on that one). Last possible moment would be when the Hirshhorn put it on display. After 1978, then the "offer for sale" becomes more important to the definition of publication. But it's all irrelevant if the Princeton one is a straight copy, as all copies became PD in 1969 if they were not earlier (unless the first copy was published in another country... unlikely since the artist was working in the U.S. at the time). Carl Lindberg (talk) 03:22, 28 October 2008 (UTC)[reply]
The timeline on Hirschhorn museum's website tells that many works were airlifted or carried by truck from Joseph Hirschhorn's home in Connecticut to Washington before the museum's inauguration in 1974. The copy at Princeton is part of the collections of a museum and that museum might have regulations on the taking of photographs. It may also have been bought from a gallery and not directly from the artist. Teofilo (talk) 06:09, 28 October 2008 (UTC)[reply]
The copy at Princeton was first outdoors on campus, and then moved inside one of the student halls ([2] Sphere VI, by the Italian sculptor Arnaldo Pomodoro, was moved indoors to a spot near the Physics Library in Fine Hall. According to Steiner, it was too delicate to withstand air pollution. In addition, student vandalism, in this case rolling the large ball-like structure down a hill, made it imperative to move it away from the dorms where it was originally placed.) When something is permanently installed outdoors, you can hardly claim that photographs were restricted. Carl Lindberg (talk) 14:52, 28 October 2008 (UTC)[reply]

Need for a bright-line rule[edit]

  • I just realized if we start allowing these images, deletion requests for them will be a nightmare in some cases. We definitely need a bright-line policy in place... what information is needed and why and if the information is not available then delete. -Nard the Bard 03:35, 28 October 2008 (UTC)[reply]

Yes, but it's difficult. "Bright lines" in copyright rarely exist. I've read a lot last week, but I'm not any wiser. Let me try all the same:

Sculpture erected ...in a public place ...in a private place
before 1923 PD Unpublished: limited publication. No © requirement. PD only if sculptor died more than 70 years ago.
1923-1963 © requirement, renewal requirement. General publication unless restrictions against copying present, either explicitly or tacitly understood or implicit. Treat as PD if evidence for no notice. Such evidence can be a detailed entry in the Smithsonian catalog that does list inscriptions, but makes no mention of a copyright notice. Also check the Catalog of the U.S. Copyright Office for renewals (should have renewals for sculptures erected since about 1950). If the Smithsonian does mention a copyright from before 1950, we have currently no way of checking for renewals: treat as copyrighted until 95 years after the year the sculpture was first erected. Unpublished: limited publication. No © requirement. PD only if sculptor died more than 70 years ago.
1964-1977 © requirement, renewal not necessary. General publication unless restrictions against copying present, either explicitly or tacitly understood or implicit. As above: treat as PD if evidence for no notice. Still check the Catalog of the U.S. Copyright Office for renewals (some works from that period were renewed even if not necessary anymore, or there might be registered copyright transferrals giving some indication about pre-1978 copyright registrations). Unpublished: limited publication. No © requirement. PD only if sculptor died more than 70 years ago.
1978 - February 28, 1989 Unpublished Unpublished
Sculpture remains "unpublished" unless copies are sold, lent, etc. to the general public. As unpublished works: no © requirement. If unpublished, sculpture is PD only if sculptor died more than 70 years ago.

If published before March 1, 1989 (which would need evidence of distribution of copies to the general public with consent of the copyright owner), the copies would have needed to bear a © notice. If not, the sculpture is PD (for evidence requirements, see "1964-1977" above). But if so, or if the copies were made available to the general public only on or after March 1, 1989 (no © requirement anymore):

  • Sculpture created before January 1, 1978: PD only if sculptor died more than 70 years ago. If the copies were made available before January 1, 2003: copyrighted until the later of 70 years after the death of the sculptor or December 31, 2047.
  • Sculpture created on or after January 1, 1978: PD only if sculptor died more than 70 years ago.
March 1, 1989 - today No © requirement: "publication" doesn't matter anymore for us. PD only if sculptor died more than 70 years ago.

There is only one case where "publication" still matters: sculptures created before 1978 but published only on or after January 1, 1978 and before January 1, 2003 are copyrighted until the later of 70 years after the death of the sculptor or December 31, 2047.

Some remarks on that:

  • "Publication" is a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term. Melville B. Nimmer (1956), as cited by Taber, p. 867.
  • Our handling of pre-1978 sculptures in public places as PD unless explicitly copyrighted or renewed is based upon the American Tobacco and the Letter Edged (Chicago Picasso) cases. This is a bit shaky, though. In Letter Edged, the courts found that a "general publication" had occurred because the copyright owner had authorized distribution of copies (photos) of the model, and in some cases even did distribute such copies himself. Since neither the model nor the copies had © notices, the sculpture was deemed PD. The sculpture was not found PD because it was erected in a public place without © notice! Also, relying on "no restriction regarding copying being present" is shaky, too, because such restrictions may be only implied or tacitly understood (read the American Tobacco case, or see Cotter, p. 38!) The Nimmer treatise interpretes the Letter Edge case in the narrow sense that only the "defendant's own distribution of copies, and authorization of such distribution, constitutes general publication" (Cotter, p. 40), whereas just erecting the statue would have been at most a "limited publication", i.e. not a publication at all.
  • Since March 1, 1989, things are a little simpler, as no © notice was required anymore, and "publication" is only of interest for works that were created before 1978 but remained unpublished until 1978.
  • The cases 1978-February 28, 1989 are difficult. 17 USC 101 clearly says that display of a sculpture is not "publication". There are two ways in which publication may occur:
    • Distribution of copies to the general public by sale, rental etc. I don't think this normally would apply; probably most sculptures we're dealing with were commissioned by one party, and the sale was just to that one party. From all the sources below, I get the strong impression that such a sale (which is not a general sale as it occurs e.g. at an auction, where any interested party can potentially buy the work) would be considered only a "limited publication". A "limited publication", again, does not count as "publication" under the law. (Note that the crucial point is not the number of copies: for a "general publication", it suffices that a single copy be sold. But the sale must be an offer to anyone who might want to buy the work. That's not the case with commissions, where the offer is only to the commissioning party.) If the sculpture was not sold at all but the sculptor agreed to have it erected someplace, no sale or other transfer of ownership occurred and the sculpture is unpublished anyway. (Would presenting a sculpture as a gift to a city be a "transfer of ownership"? Probably. Would it be to the public at large? Probably not...)
    • (Offering to) distribute copies to a group of persons for purposes of further distribution or public display. "Further distribution" does not apply to our sculptures unless the commissioning party made sure it got the right to make additional copies. With a single copy (or only a few copies), there can be no talk of "further distribution". "Public display" may apply, though, unless the sculpture was erected in a private place. The question then is whether a single commissioning party would qualify as a "group of persons". There are cases where some such distributions for further display were held not to be "general publications": the most famous one are certainly the "I Have Dream" cases (e.g. Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. 194 F.3d 1211 (11th Cir. 1999): Martin Luther King's distributing handouts of his speech to the press was found to be a "limited publication"), but there are others, too: Burke v. National Broadcasting Co., Inc., 598 F.2d 688 (1st Cir. 1979) held that giving a copy of a film to someone else for the purpose of having it broadcast on TV was only a "limited publication".
  • If a pre-1978 "unpublished" sculpture (for instance, placed in a private place) was otherwise generally published (e.g., by offering copies for sale to the general public with the consent of the copyright owner), then of course it is "published", and the © requirement is triggered (presumably only for the copies so offered, but not for the original sculpture—it seems contrived to require a sculptor to go add a © notice later on, but that's just my gut feeling). That of course also applies to sculptures up to February 28, 1989. (It also applies after that date, but since there was no © requirement anymore, it's not important for us whether the sculpture was "published".
  • In general, this whole distinction the courts developed between "general publication" and "limited publication" is a murky area. Court decisions seem to go one way or another.
  • It is not entirely clear to me how the sale of a second (or even of a third) cast of a sculpture would be considered. For instance, Bruno Lucchesi's Raphell was commissioned by a private foundation and first erected in 1983 in New York City, and then a second cast was erected at Brookgreen Gardens. Both casts are in "places open to the public". If the first version was and remained "unpublished", would the erection of the second copy gone beyond a "limited publication"? Or take Charles Keck's Fauns at Play and assume, for the sake of the argument, that it was a post-1978 work. It was first installed in a private garden, and then a second cast (with minor differences in the base) was placed at Brookgreen Gardens. The erection of the first copy clearly was at most a "limited publication", but what about the erection of the second cast at Brookgreen Gardens? Was that "general publication"? It may well be that the sale itself, even of a second or third copy, is still a "limited publication" only. In Williams vs. Arndt 626 F. Supp. 571 (D. Mass. 1985), the plaintiff, who had written a booklet on commodities trading, "sent a copy to about 10 of his more preferred customers who had ordered the booklet in response to a promotional flier ... limited to certain customers." (Cited in DaimlerChrysler Systems vs. Summit National in the context of determining limited publication; from context it appears as if in Williams vs. Arndt, it was held that the above was a limited publication only.) Similarly, in Hirshon v. United Artists Corp 243 F.2d 640 (D.C. Cir. 1957), distribution of 2,500 copies of a song to broadcasting stations was held a limited publication (limited and defined scope of recipients, limited purpose (promoting the song), and no explicit license to reproduce, redistribute, or resale). The restriction against further distribution may also be implied, see Academy of Motion Picture Arts and Sciences v. Creative House Promotions, 944 F.2d 1446 (9th Cir. 1991). OTOH, in Public Affairs Associates, Inc. v. Rickover, 284 F.2d 262 (D.C. Cir. 1960), Admiral Rickover was found to have generally published his speeches by distributing them indiscriminately to anyone who asked (and in some cases, even to people who hadn't asked). But precisely this element of "indiscriminately distributing to anyone interested" is, IMO, typically missing in the case of sculptures. (Unless there really are copies of a sculpture for general sale, for instance Marshall Fredericks' Leaping Gazelle[3]—this one is clearly "published"—.)
  • In general, try to find the earliest cast of a sculpture existing. Fredericks' Leaping Gazelle was commissioned 1936 and installed at Belle Isle, Detroit, in 1937,[4] whereas the Brookgreen version dates to 1972. Copyright would be determined based on the 1937 date.

Literature:

Take all this as only an attempt to sort out these issues. Now let's see what to make of this. Lupo 11:37, 28 October 2008 (UTC)[reply]

  • The "I Have a Dream" case is especially troubling because Dr. King distributed copies of his speech to the press without any restrictions, indeed it was so the press could further distribute the work! Then he gave the speech and allowed the public to film it. *Then* he registered the work for copyright as "unpublished" a month later! Whatever his original intentions, the court found the registration to be valid. I think that in *any* case where there's a valid registration we shouldn't try to assert the "no notice" portion, ie to be safe we should require a work have no notice and no registration in order to accept it as PD. -Nard the Bard 15:49, 28 October 2008 (UTC)[reply]
  • The "press" represented a limited class of people, and the purpose was also restricted (just to aid in their reporting, not further distribute), so it was limited publication. I think it later came out that it may have been published in a pamphlet given out to members of the public, which may well have crossed the line, but that part never got to be part of a court case I don't think. In any event, this is why I think we should keep to permanent public displays of statues, and not temporary -- there is little argument that a permanent display can only be seen by a limited class of people. Temporary displays (and probably display in indoor galleries) have lots of landmines, so I think we should avoid those. Carl Lindberg (talk) 16:05, 28 October 2008 (UTC)[reply]
  • I consider reprinting the speech in the newspaper as further distribution (not in a legal sense but in a practical sense). My point is if somebody's registered the work or otherwise asserting rights, I don't think we want to go to court to "prove them wrong". -Nard the Bard 16:14, 28 October 2008 (UTC)[reply]
    • Certainly not. In any case, we should be aware of the difference courts make between "investive publication" and "divestive publication" claims. An "investive" claim is one in which a party argues that the works was copyrighted because it was properly published (with notice). A "divestive" claim is one where a party argues that the work was not copyrighted because it was published without compliance to the required formalities. U.S. courts demand much stronger evidence for "divestive" claims than for "investive" claims. (See Cotter, pp. 33-34.) When we argue that a work was PD because it was published without notice, we make a "divestive publication" argument. We should in any case follow this practice and demand higher quality of evidence for claims of "it's not copyrighted" than we do for "it's copyrighted". (I have the impression from some DRs that we are doing exactly the inverse, i.e., that people who claim something was copyrighted have to make much stronger cases than people who claim something was not copyrighted. That's not right. The burden of proof should be on the people claiming something was free.) Lupo 08:18, 29 October 2008 (UTC)[reply]
Oof :-) Welcome back. Prior to 1978, it appears photos of sculptures were considered "copies" (this is from the Picasso decision), so presumably by permanently putting up a sculpture in public, you were allowing anyone to photograph and copy it -- this was general publication, since "any and all" could come to see it. The Picasso was not a permanent installation, so it probably needed a bit more to qualify for general publication. I don't think we should deal with non-permanent installations in this policy, unless a really unusual amount of documentation is available -- way too many questions normally. But, permanent installations before 1978 would constitute general publication I think (since there is no restriction on who can see it, which is required for limited publication -- that is only if distributed to a limited class of people).
1978 - 1989 is really messy, as you say. I'm not sure if the concepts of limited vs general publication exist after that date -- I thought the 1978 definition was supposed to try to clear that up, though I may be wrong. The Copyright Office circular seems somewhat specific, but there are also thorny questions -- what constitutes a "group"? A very strict reading though would mean that sculptures are virtually never published after 1978. I'm not sure that photos count as explicit copies anymore either. On the other hand... if they offer to sell (i.e. to anyone willing to meet the price, as opposed to a commission) two or more copies, that probably constitutes publication. If they donate a second copy of sculpture to Brookgreen Gardens, that probably carries the assumption of public display, and would probably also be publication. It does almost seem though that a single unique statue may never be published... unless the sculptor themselves selling photographs of the sculpture would be considered "copies", which seems at odds with the Copyright Office circular. Also, there was a five-year period where a work could be registered even if notice was omitted, so a search of the database would still be required (though the author was supposed to also make an effort to go back and place the notice on copies as well).
I think, prior to 1978, good documentation of lack of notice on a publicly erected statue should suffice for PD. The "good documentation" is the hard part; do we allow people to go and look over it themselves? Maybe if they document every single inscription they find?
1978-1989... probably safest to require documentation of multiple castings, and it is also subject to the same documentation above, in addition to a database search.
Renewals are really hard, so will be somewhat rare. If we know that a copyright year is between 1951 and the end of 1963 though, then the renewal should be in the online databases (you could renew up to one year before the original registration date, so a 1950 work could be renewed in 1977, before the online stuff starts). If published in 1923 specifically, the Gutenberg books would contain the renewal, since their 1950-51 editions do contain renewals for visual art. Anything else is virtually impossible to verify lack of renewal right now, as far as I can see.
The other ugly problem is when commissions are held by the U.S. government. Sometimes these are transferred to another group (like the Vietnam Women's Memorial Foundation) which can hold and enforce that copyright, and those should be considered the same as any private copyright, but other situations are probably not as clear. Carl Lindberg (talk) 16:00, 28 October 2008 (UTC)[reply]
Oof indeed. As to whether the "limited publication" thing is still relevant post-1977, Lehman writes on p. 32 "... the few cases dealing with publication since 1989 suggest that courts will continue to apply the doctrine of limited publication."
Another unclear point is whether a sale offered to only the commissioning party was indeed considered a "limited publication" as I've argued above; none of the cases where limited publication was found involved a sale. Yet if it weren't so, the statement from the 1976 Act that display of a sculpture was not publication would apply only to the vanishingly small class of sculptures that actually were not sold ever, and that were neither offered for sale ever. Under that assumption, what about rejected commissions?
Another question I'm unsure about is what exactly is the sculptor offering to sell in a commission? Is he selling an artwork (produced following a more or less detailed specification by the client), or is he selling his know-how, time, and work to create the artwork as specified? In the latter case, there'd be no sale of the artwork per se. (I know, it sounds contrived. I'm just testing the boundaries of where this "display is not publication" dictum can be applied.) Lupo 16:31, 28 October 2008 (UTC)[reply]
I think a commission would usually be "limited publication" -- you are selling it to one person or group, arranged in advance. If the purpose was for public display, then that would be considered authorized obviously, and (depending on era and situation) may turn into general population. For the second question... if they were just selling know-how, that would be a work for hire I think, which I doubt would be termed a "commission". A commission leaves open a lot of possibilities, including possible transfer of copyright, but not sure work-for-hire is one of them. Prior to 1978, it was public exhibition that was the time of publication, so not sure the distinction would matter (unless it was unauthorized, but if a public sculpture is still there decades later, it should be safe to presume it was authorized). After 1978, I keep going back to Circular 40 -- A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, such as through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published. That would imply that most any time a second casting is sold or put on public display, then the work would be published -- but would also seem to imply that a work existing in only one copy would almost never be published... unless it means if sold in other ways (commission?) then it may be published. It specifically mentions public artwork too. I wonder if there was a court case which resulted in this clarification. Carl Lindberg (talk) 05:49, 29 October 2008 (UTC)[reply]
I'm doubtful of this statement in Circular 40 and wonder if it is not one of the reasons it is being revised. This claim that the sale of a single copy at an auction or in a gallery was not a publication goes against anything I've seen elsewhere. A sale at a gallery is a public sale: anyone interested and having the money to pay for the work may buy it. That is clearly a "general publication". It would only not be a "publication" if e.g. the possible participants at the auction were restricted to a select group up front.
I don't think "work for hire" enters the picture. "Work for hire" would imply that the commissioning party paid employee benefits (such as social security, unemployment insurance, etc.) to the artist. See Community for Creative Non-Violence v. Reid 490 U.S. 730 (1989). That is, AFAIK, not the case in a commission.
And yes, the question is of interest primarily for the hard cases 1978-Feb 28, 1989. Lupo 08:04, 29 October 2008 (UTC)[reply]
Interesting, as I also haven't been able to find anything to back up the "multiple copies" claim, other than the use of the plural word in the law. I'm sure you have looked harder though. As for the work for hire -- I basically agree; I don't think a sculptor usually just selling "know-how", and would be the owner of the copyright unless transferred. Many contractors do produce works for hire even if they are not paid benefits (there are many variations on "contractor") but I don't think normally a sculptor is one of them, unless they are making an item specified very clearly, like maybe a straight copy of an existing work. The court case you mention makes it sound like the commissioning party had some input on the actual art, and was therefore a co-author. Definitely not a work for hire, but rather a sale to one pre-arranged party. Publication probably rests on the intended purpose of the commission... if was made for public display, then presumably it could be considered published, other than this "multiple copies" thing. Carl Lindberg (talk) 17:06, 29 October 2008 (UTC)[reply]
Yeah. Interestingly, I notice that I cited that phrase from Circular 40 myself a few years ago at en:WP:PD#Publication, with approval... Hmmm. Maybe I got a wrong impression from my recent readings... or maybe not. Would have to find cases. So far, I have only a few statements directly on point (i.e., whether the sale of a single copy is a "publication"):
  • Burke v. National Broadcasting Co., Inc., 598 F.2d 688 (1st Cir. 1979) says (paragraph 24):
    "A general publication can be found where only one copy of the work passes to a member of the general public, as general publication depends on the author making the work available to those interested, and not on the number of people who actually express an interest. Jewelers', 49 N.E. at 875; Nimmer on Copyright § 4.13(A), at 4-67. Thus "(t)he common-law right is lost by the general publication or unrestricted sale of a single copy." Bobbs-Merrill Co. v. Straus, 147 F. 15, 19 (2d Cir. 1906), Aff'd, 210 U.S. 339, 28 S.Ct. 722, 52 L.Ed. 1086 (1908). Thereafter, a copyright can be preserved only by timely compliance with the copyright statute. In at least two cases involving a dispute over whether a statutory copyright existed, the sale of a single copy of a written work has been held to constitute publication such as to require compliance with or invoke the protection of the copyright statute. Gottsburger v. Aldine Book Publishing Co., 33 F. 381 (D.Mass.1887); Atlantic Monthly Co. v. Post Publishing Co., 27 F.2d 556 (D.Mass.1928)." Note, however, that this cites only old cases, so maybe that only applies to the 1909 Act.
  • Cotter quotes Melville Nimmer on p. 31 also to say "the work need not be offered in sufficient numbers to satisfy the public demand and, indeed, may be effected by sale or other distribution of a single copy, such copies as are available must be offered to all members of the public who are interested", and provides citation to three post-1978 cases,[5][6][7] which, however, all concern pre-1978 facts and thus evaluate "publication" under the rules of the 1909 act. Cotter revisits the topic on pp. 59ff, noting a distinction between the "sale of a single copy" (which is publication under the 1909 Act) and the "offer to sell a single copy" (which apparently is not "publication", at least not for artworks.) But again, nothing about the situation under the 1976 Act.
These statements and their context seems to indicate that "sale of a single copy=publication" is valid only under the 1909 Act. In contrast,for the 1976 Act, we have:
  • 17 USC 101 (quoted above) uses the plural ("copies"). That seems to exclude a single copy.
  • Circular 40, explicitly stating that the sale of a single existing copy (i.e., of the original) was not "publication".
  • However, the accompanying House Report 94-1476 says:
    "Under the definition in section 101, a work is “published” if one or more copies or phonorecords embodying it are distributed to the public—that is, generally to persons under no explicit or implicit restrictions with respect to disclosure of its contents—without regard to the manner in which the copies or phonorecords changed hands." (p. 138, emphasis added)
  • Then there's also David Nimmer's opinion which you mentioned above, who doesn't address this issue directly, but who claims that the exhibit of a single work of art in a gallery for sale constitutes publication under the 1976 Act even if the work is not sold because the single copy was distributed to the dealer for the purpose of "public display". See Nimmer, David, "Access Denied", pp. 769-788 in Utah Law Review 3/2007, here pp. 774f. I'm personally not sure about that: what if the artist had not used a gallery but exhibited the work in his own shop (or if the gallery owner were the artist himself)? In that case, he would have "merely displayed" the work (not a publication), but would not have "distributed it for public display"...
For the 1909 Act, the situation seems pretty clear (sale of single copy is "publication", if the sale is "to the general public"), but for the 1976 Act less so, and Circular 40 may well be right. Why can't they just spell out clearly in the law what exactly they mean? Lupo 10:35, 30 October 2008 (UTC)[reply]
Just for the sake of completeness and so that we have that here, too: for the 1976 Act, the original is a "copy", too, so when the Act mentions a "copy" or "copies", the original is always included. See 17 USC 101, definition of "Copies": “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. The "material object in which the work is first fixed" is in normal parlance, of course, "the original". For the 1909 Act, Melville Nimmer's definition (see Cotter p. 31) of "publication" explicitly includes the wording "...if the original of tangible copies of a work...". Lupo 11:28, 30 October 2008 (UTC)[reply]
For the 1909 Act, the situation seems pretty clear (sale of single copy is "publication", if the sale is "to the general public") --> If the location of the artwork outside in a street under the rain is not a condition, then this discussion should not be limited to sculptures but extended to paintings too. Teofilo (talk) 01:26, 1 November 2008 (UTC)[reply]
Yes, this would go for paintings too (in fact the original American Tobacco case was about a temporary exhibition of a painting). Those are much rarer to be permanently installed in public though. Murals would qualify though. Carl Lindberg (talk) 15:51, 1 November 2008 (UTC)[reply]

What is evidence for "no notice"[edit]

Carl raised the question again in the discussion above, writing "The "good documentation" is the hard part; do we allow people to go and look over it themselves? Maybe if they document every single inscription they find?"

In general, I think we should follow a "no original research" policy. In other words, require a reliable and verifiable external source that corroborates the claim of "no notice", such as a detailed SIRIS entry listing inscriptions, but not mentioning a copyright, combined with a search at the Copyright Office's records since 1978 for renewals that comes up empty. Other reliable, verifiable sources that state "the sculpture has no notice" of course also qualify. Lupo 12:25, 30 October 2008 (UTC)[reply]

  • I can get behind that. Not to change the subject, but what about no renewal? Take for instance Image:Balto.jpg published with notice in 1925.[8]. With non-existent renewal records for that period, how would we know if it was still in copyright? -Nard the Bard 19:56, 30 October 2008 (UTC)[reply]
    • I would say in cases where we have evidence that a work was copyrighted in the period 1923 - 1950 but where we have no renewal records to search, we should treat the work as copyrighted until 95 years after its publication per the precautionary principle. I know that for books, only a small percentage of the works was renewed, and I would expect this to be similar for other classes of works, but unless we can find evidence that indeed the copyright on a particular work was not renewed, we cannot just blindly claim so. For works originally copyrighted from 1950/1951 on, there should be renewal records in the database of the U.S. copyright office, which has records from 1978 on. And Carl says that for works originally copyrighted in 1923, the Gutenberg files should have the renewals.
    • The third case is of course works where we have no information at all: neither evidence for "no notice", nor evidence for a notice. In the absence of any information, I think we should treat the work as copyrighted. Again, if it is from 1950 to 1963, a renewal search at the U.S. copyright office may help make a case for "not renewed" (or for "definitely renewed", as the case may be). Lupo 20:14, 30 October 2008 (UTC)[reply]
      • Generally agree with the "not renewed" and "no information" cases -- in those situations there is no real basis to claim the specific works as PD, since there is no information. Same as now for photographs (which are probably even less likely to be copyrighted than sculpture). If we can find external documentation that copyright was not renewed, or someone pays to do a copyright records search, then that may be OK. In short we need some basis to legitimately believe it is PD. For a 1925 copyright, that would involve searching the 1952/1953 visual art renewal records (or finding some reliable source which indicates that such a search was done). Carl Lindberg (talk) 02:06, 31 October 2008 (UTC)[reply]
And what about items such as basic sculpture on cemetery headstones and the like? Stuff which is highly unlikely to be copyrighted, and even less likely to be mentioned in literature someplace? That policy would basically mean automatic deletion for that kind of stuff (and I'm pretty sure I've seen DRs like that). I dunno... seems like "no original research" is a bit strong as a blanket policy, but I can see definite problems with abuse of people claiming there is no notice just to avoid deletion. For people who do go to the extra effort to really look though, it can also be rather disrespectful to basically assume they are lying. That is why I was thinking of maybe a full documentation of all inscriptions as evidence that someone really looked. Obviously this would be abuse-able, though this is not much different than lying about regular licenses, which we accept on good faith unless they can be shown to be wrong (and in these cases, we could turn up some information on the internet, or someone could go look on the statue themselves, to disprove such claims). For example, do we disallow stuff that is being talked about at Commons_talk:Licensing#Pre-1978_album_covers for similar reasons? There is no easy answer, but I may look for some solution which is less than "no original research", especially for the not-quite-so-high-profile works where external documentation is unlikely to exist. Carl Lindberg (talk) 01:50, 31 October 2008 (UTC)[reply]
Well, on grave headstones (and grave sculptures), I can only go by my experience from European graves: those that are interesting enough to photograph usually are mentioned in literature somewhere, and with some effort, the sculptor or at least the company (and through that, the sculptor of the model for a mass-produced item) can be determined surprisingly often. Often, headstones containing sculptural works (a medallion showing the head of the deceased, for instance) are signed, too, but one needs to look closely.
If someone puts together a really thorough documentation with high-res photos of the pre-1978 work from various angles and close-ups of all the inscriptions, we might accept that under AGF until and unless problems are detected. It would take quite some dedication to lie with photographic evidence. (As a side effect, such a requirement might improve our documentary effort on these works :-) But would you also accept statements absent photographic evidence? I'd be very reluctant to do so, given that most people just snap a picture of some statue without bothering about how the work is called, who made it, and when. Lupo 07:31, 31 October 2008 (UTC)[reply]
Sigh, indeed. Take this for example. I had to do a google search for "dogsled Alaska" (and you can imagine how many hits that got me) and page through a million results until I saw the same sculpture from another angle. Then I read the blurry name off it. Then I Googled that and got the one of only 3 Google hits for the name, which mentioned the author. It's frustrating when something does have an attribution or plaque and people just ignore it and claim the work isn't attributed (like they did in this case). -Nard the Bard 11:38, 31 October 2008 (UTC)[reply]
That is why I was suggesting at the very least documenting every inscription they can find on the statue and pedestal... that would show that they went back and looked. For some reason I hadn't thought about photographic evidence as well -- that is also a good idea, so we at least have views from different angles (and the back). If someone is going to spend the time to look for inscriptions they could also take a few more photographs at least (and is probably faster anyways). But no, definitely not with just a simple statement, and especially not for public sculpture, where there is almost always going to be documentation. I was also thinking about things like this image -- the decoration on the top would qualify for copyright; would that be a violation if such a photo were uploaded? Or would we just consider that kind of thing de minimis? Carl Lindberg (talk) 15:08, 31 October 2008 (UTC)[reply]
As Nard said, we know from SIRIS that Image:Balto.jpg has a copyright notice, but one can't find the notice on the picture itself. Do you think the copyright notice would appear on a different photograph showing a different angle, or is the copyright notice on the same angle as Image:Balto.jpg, but so small that we can't see it ? If the latter is true, that would mean that we can't rely on photographic evidence, because notices are too small to be shown on photos. Or we would need to precise what is the real meaning of "high resolution" with a "pixels per centimeter/inch" minimum. Does anyone have one (or more) example(s) of a photo showing a copyright notice on a sculpture ? Teofilo (talk) 12:12, 1 November 2008 (UTC)[reply]
Hmmm. The SIRIS description is wrong: the copyright notice is not at the front of the base. At the front is written "Balto" (and SIRIS doesn't even mention that). The copyright notice is on the side, next to the dog's right hind leg; see here. But you're right, even with a thorough photographic documentation, we'd have no assurance at all that not some part of the sculpture was not reproduced (intentionally or not). I guess that's back to "external verifiable reliable source" only. Lupo 12:58, 1 November 2008 (UTC)[reply]
So the problem here was the lack of a picture on the right angle, but the inscription was big enough. So perhaps asking for "enough" pictures on all possible angles (with no dead angle) of the base of the statue would be a fair requirement ? (Though in this case the copyright notice is on the main body of the sculpture, not on the base). On the other hand, requiring to photograph every inch of the statue might prove difficult when the statue has gigantic proportions (you would need a helicopter or a ladder). Teofilo (talk) 14:49, 1 November 2008 (UTC)[reply]
Maybe things are not as bad as we thought. Sherr v. Universal Match Corp(mentioned several times hereand here) ruled that a copyright notice placed 22 feet off the ground on a large statue that was invisible to the casual observer was invalid. (That case is also interesting because it ruled that if a sculpture made as a "work for hire" for the government were published with proper notice the rights would vest in the government and it would not be public domain. What's more interesting is the plaintiffs involved were military members. I think we could avoid most of the confusion with for example WPA works if we just used a straight notice/registration policy for pre-1978 works, regardless if they were created by or for the government or not.) -Nard the Bard 15:45, 1 November 2008 (UTC)[reply]
I don't think the SIRIS description was wrong -- looking at pictures it would seem the typical "front" of the sculpture, based on where people would usually look at it, is that side of the husky. It is odd that the "BALTO" inscription (which would be on the "right side") is not mentioned though. In general, I think notices had to be accessible to someone looking for it -- the 1909 act doesn't seem to explicitly specify a required location, but for one other type says it must be in such manner and location as to give reasonable notice of the claim of copyright, and where the copyright notice only has the author's initials, that on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. I think notices had to be reasonably noticeable to someone looking for it, and not hidden away somewhere. Normally, I would think that photos of all four sides (including pedestal) is probably enough, if they are not blurry and are high-enough resolution. It would also help if they could find the artist's signature without a copyright symbol or word, since that is where the notice would most often appear). Carl Lindberg (talk) 16:09, 1 November 2008 (UTC)[reply]

Since there are no objections[edit]

Since there seem to be no objections to putting this into place, I'll hammer out a final policy page and template (or templates) over the next few days. I'm skipping the draft proposal and voting step, as we're all not very far off from each other from what we'd like the rule to be. There's general agreement on what constitutes a published statue, and the need for adequate documentation on the author, year, and whether the work was properly registered, and the need to simply delete anything that doesn't meet the standard. If I make a mistake on the new page, feel free to jump in and edit it. -Nard the Bard 05:49, 8 November 2008 (UTC)[reply]

I think there are still questions on 1978-1989 "published", and maybe some government aspects, but nothing that should prevent things from moving forward. I think there is general agreement on pre-1978 and post-1989 works, which covers most of them. Carl Lindberg (talk) 08:43, 11 November 2008 (UTC)[reply]
Correction, I am going to be away for a few months, so I'm passing the torch. -Nard the Bard 17:39, 26 November 2008 (UTC)[reply]
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