Professor David Post
H2O has permission to use this resource.
Suppose, after the dust settles, we reach the following conclusions about the ownership issues involved in this dispute:
1. Applying principles of personal property and contract law, CCNV is the sole owner of the sculpture “Third World America.”
2. Applying principles of copyright law, Reid is the sole owner of the copyright in the sculpture “Third World America.”
[As an aside, this is, basically, what the court actually concluded, after many years of litigation, in this case. In addition, this is not an uncommon posture; if you were to walk into an art gallery and purchase an oil painting on display there, presumably you would own the painting, while the painter (or her transferee) would own the copyright in the painting.]
Now, return to the question with which the parties began: Can CCNV take the sculpture on tour? How do we analyze that question?
To begin with, we might ask – why wouldn’t CCNV be able to take the sculpture on tour? It owns the sculpture (see #1). CCNV owns many other items of personal property – computers, pencils, paper clips, automobiles, etc. Can’t they take any of those “on tour”? If Reid continues to keep the sculpture locked up in his studio to prevent this, CCNV would, as the owner of the property, have a cause of action against him for the tort of “conversion” (or possibly “trespass to chattels”) if he exercises dominion over it against CCNV’s wishes (just as if he took one of CCNV’s computers or paperclips or . . . .). So why can’t they take it on tour?
Perhaps Reid’s exclusive rights as owner of copyright in the work will allow him to prevent that. Let’s take a look at that. As copyright owner, Reid has the exclusive rights set forth in sec. 106 (and only those rights 1):
§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ￼
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
So our question becomes: would CCNV’s taking the statue on tour violate of any of Reid’s exclusive rights?
Notice, to begin with, that Reid has no rights under §106(4) or §106(6) in regard to this work (do you see why??).
So the question is: does “taking the sculpture on tour” entail
reproducing the copyright work in copies; or
preparing a derivative work based upon the copyrighted work; or
distributing copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; or
displaying the copyrighted work publicly?
If so, then CCNV will need Reid’s authorization to do it.
It is difficult to see how the act of taking the sculpture on tour could constitute a violation of §106(1), (2), or (3). CCNV will not be reproducing the work in copies, or creating a derivative work, or distributing copies of the work to the public.
Public display (§106(5)), however, is another matter. “Display” is defined in §101 to mean “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process . . . “ Surely, taking the sculpture on tour will involve “showing a copy of it.”
But a display is within the copyright holder’s rights only if it is a public display. A public display is defined in §101 to mean
“. . .to 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
to transmit or otherwise communicate a . . . display of the work to a place specified by clause (1) or to the public, by means of any device or process . . .”
So if “taking the sculpture on tour” involves “showing” the sculpture at a “place open to the public,” it is a public display of the copyrighted work, and the copyright holder (Reid) has the exclusive right to do that. So it looks like CCNV will need Reid’s permission after all.
However, there is still one more provision of the Act that is relevant here. There is a defense in §109(c) that could be applicable to CCNV’s actions:
“§109(c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”
CCNV is the “owner of a particular copy lawfully made under this title.” Therefore, without Reid’s permission, it may “display that copy publicly . . . to viewers present at the place where the copy is located.” [What sorts of things, do you think, are excluded from this defense? What can’t CCNV do when it takes the sculpture on tour?]
1: “Third World America” might be a “work of visual art” (see §101 definitions), which would additionally give Reid certain rights under §106A as the “author” of a work of visual art. We are not going to be looking at §106A here in this course – and in any event, the rights set forth in §106A would not prevent CCNV from taking the sculpture on tour even if Reid owns them.