Legal Issues
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LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel) <[email protected]> Bryan M. Carson, J.D., M.I.L.S. (Western Kentucky University) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Cases of Note — Copyright – The Dreadful Jumble of Acts Column Editor: Bruce Strauch (The Citadel) <[email protected]> SOCIETE CIVILE SUCCESSION descendants. The Guinos would control Yes, let’s reiterate. Pre-1978, you lost RICHARD GUINO V. JEAN-EMMANUEL production and reproduction. common law protection when published. RENOIR AND (a whole slew of) OTHERS. In 1984, Société got U.S. It either went under the federal scheme UNITED STATES COURT OF APPEALS copyright office registrations or entered the public domain. FOR THE NINTH CIRCUIT. 549 F.3d 1182; for the sculptures. But wait. It wasn’t published in the 2008 U.S. App. LEXIS 24755. In 2003, a Renoir grandson U.S., you’re saying. Exactly. It was pub- Pierre-Auguste Renoir did not work alone. Paul, living in America, sold molds and castings lished in France. He had help named Richard Guino. Or rather of some scuptures to Beseder, a gallery in Scott- Twin Books (See: My – haff-kaff – Case of Guino did the work and Renoir put his name on it. sdale, Arizona. They sold them to eager buyers. Note in ATG v.26#3. It was about Bambi.) held They did some sculptures between 1913 and 1917 In 2003, Société sued Renoir and Beseder that “publication without a copyright notice in which were “published” in France in 1917 under alleging federal copyright infringement under a foreign country did not put the work in the Renoir’s name. There was no copyright notice. 17 U.S.C. § 501 et seq., false designation and public domain in the United States.” 83 F.3d at Renoir only did sculpture late in life. He false description of sponsorship under the 1167. “U.S. copyright law should not be given died in 1919 at age 78. These are his sculpture Lanham Act. extraterritorial effect.” Id. At 1166. years. He had a stroke and was crippled by Beseder/Renoir answered that the sculp- Which it would be if being published abroad arthritis. He badly needed assistance. tures were in the public domain. without U.S. copyright threw it into the U.S. When I hear Renoir sculpture I tend to think The district court held, relying on Twin public domain. of the ballet dancers. Whups, that’s Degas. I Books v. Walt Disney Co., 83 F.3d 1162 (9th So Public Domain or Protected? think of … well, I don’t think of anything. Cir. 1996), that the sculptures were not in the If you google Renoir Guino what you find public domain. They were published in a for- The sculptures were “published” in France in seems to be nude doing laundry in running water eign country without copyright notice and were 1917 and again in 1974, both times without U.S. — La Grande Laveuse — and nude emerging protected for seventy years after the death of copyright notice. They weren’t published in the from something or other — the “Venus Victrix” the last author. U.S. without protection. So they were not put in which quite looks like a Maillol. the U.S. public domain nor were they protected And then blah-blah-blah and we get to the by copyright under the 1909 Act. The Spanish sculptor Aristide Maillol had a appeal to the 9th Circuit. skilled assistant Richard Guino, a Catalan. He But that didn’t matter because Beseder was more than an assistant. Maillol pronounced The Appeal didn’t sell the casts until 2003, and U.S. copy- him the most talented sculptor of his generation. Under the 1909 Act, a work was protected right protection began in 1984. Maillol told Renoir “I have found your by state common law copyright from the time Then we have to move to the 1976 Act to hands.” of creation until it was published or got pro- determine their status between 1978 and 2003. tection under the federal scheme. At that time, Section 303(a) applies to worked “created And so the collaboration began. The crip- copyright protection moved there. La Cienega before Jan. 1, 1978, but not theretofore in the pled Renoir sat in his studio with a paintbrush Music Co. v. ZZ Top, 53 F.3d 950, 952 (9th public domain or copyright.” tied to his claw-like hands. Guino worked in Cir. 1995). the garden. When he had finished a sculpture, The sculptures were finally copyrighted in Published without protection — public do- Renoir would sign his name to a piece of clay 1984. Section 302 gives them a 70-year term main. With protection, an author got 28 years which he would attach to the sculpture. of protection from the death of Guino, the last plus a 28-year renewal term. surviving author. He died in 1973. If we can do The art dealer said this would bring a better The 1976 Act shifted the basis of protection math on this level that gives protection until … price. Which was true. But something more from publication to creation. (That’s the put in um (counting on fingers) … 2043. sinister was at work. Guino learned the truth a “fixed medium” thing you know about.) when he was told to take a day off and returned to findRodin had visited and been told Renoir did all the work. Guino was hidden from view and at last forgotten in art history. He lived poor and Questions & Answers — Copyright suffering from depression. Renoir’s sons and grandsons sold new Column editions of the bronzes and pocketed the profits. In 1965, Richard Guino sued the Renoir Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, estate. After eight years of squabbling, nine University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; months after Richard’s death, a Paris court Phone: 919-962-2295; Fax: 919-962-1193) <[email protected]> recognized him as co-creator and awarded his estate fifty percent of royalties. QUESTION: A public librarian reports a wants the library to conduct fee-based re- A trust was formed, which you see in the new partnership between the library and the search for it. The generated data will appear title, for the benefit of the Renoir and Guino local Chamber of Commerce. The Chamber continued on page 68 Against the Grain / November 2016 <http://www.against-the-grain.com> 67 ANSWER: There have been grumblings infringement, value or nature of the infringed Questions & Answers about predatory publishers and complaints to work, duration of the infringement, defendant’s from page 67 the Federal Trade Commission for several state of mind, etc. (2) Section 405(b) of the years. In late August 2016, the FTC filed a Copyright Act blocks a defendant from claim- in Chamber publications, many of which complaint against OMICS ing innocent infringement are sold. If the library uses a commercial Group and two of its sub- if the work contains a vendor such as Proquest for the searches and sidiaries claiming that they notice of copyright. The that data is used in a fee-based publication, are exploiting open access Department of Com- is that a copyright violation? Is this issue publishing by charging merce proposal would dependent on the contract with the vendor or researchers very high fees eliminate the notice of copyright law? (ranging from a few hun- copyright bar and reduce it ANSWER: Using a fee-based service to dred to several thousand to only one relevant factor provide the copies for your “client” will cover dollars) for publishing in in the innocence calculus. you and the Chamber for the needed copies. their journals. Authors (3) Instead of the current However, if the Chamber then wants to repro- believe that their works per-work calculation for duce something from one of these documents will be published in legit- damages for non-willful in a publication, it will need to seek permission imate journals but, in fact, secondary infringers such for that. In other words, paying for the copy of the journals lack any peer review process and as online service providers, courts would apply a copyrighted work does not grant permission may even publish articles for any author who the factors from # 1 and does not include a for republication. The best source for obtaining is willing to pay. mechanism for increasing statutory damages by this permission is the Copyright Clearance The company is headquartered in Hyder- allowing multiple awards based on the number Center. It is possible that the Chamber of abad, India, and the FTC has been watching of uses of a copyrighted work. Commerce already has a license with the the company’s behavior for years. OMICS It is unclear whether these recommended CCC for republication. Either the Chamber publishes more than 700 open access journals, changes will be enacted into law. or library, in its role as a partner, should de- many of which have names similar to legiti- QUESTION: An academic librarian asks termine this. Vendors typically cannot grant mate journals, e.g., iMedPub. In addition to publication rights. about text and data mining (TDM) and the claiming that the journals fail to reveal that the copyright status of TDM. QUESTION: An academic librarian asks author pays for inclusion, it also falsely claims why the publishers in the Georgia State Uni- that its journals are cited frequently. Further, ANSWER: A simple definition of text and versity case have appealed the second ruling after being notified that their articles have been data mining is the use of automated analytical of the federal district court.