LETTER EDGED IN BLACK PRESS, INC. v. PUBLIC BLDG. COM'N OF CHICAGONo. 69 C 353.
320 F.Supp. 1303 (1970)
The LETTER EDGED IN BLACK PRESS, INC., an Illinois corporation, Plaintiff,
PUBLIC BUILDING COMMISSION OF CHICAGO, a municipal corporation, Defendant.
PUBLIC BUILDING COMMISSION OF CHICAGO, a municipal corporation, Defendant.
United States District Court, N. D. Illinois, E. D.
December 22, 1970.
Arvey, Hodes & Mantynband, Barnet Hodes, J. Herzl Segal and Jack H. Oppenheim, Chicago, Ill., for plaintiff.
Thomas R. Juettner, Gary, Parker, Juettner, Pigott & Cullinan, William R. Dillon, Concannon, Dillon, Snook & Morton, Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
NAPOLI, District Judge.
Plaintiff seeks a declaratory judgment invalidating defendant's copyright to the Pablo Picasso sculpture entitled "The Chicago Picasso." The defendant is the Public Building Commission of Chicago (Commission) and the plaintiff is a publisher who desires to market a copy of the sculpture. Pursuant to Rule 56 of the Federal Rules of Civil Procedure both parties have moved for summary judgment. Succinctly, plaintiff maintains that defendant's copyright is invalid because the sculpture is in the public domain. Defendant asserts that the Chicago Picasso has never been in the public domain.
STATEMENT OF FACTS
In 1963 certain of the Civic Center architects, representing the Commission, approached Picasso with a request to design a monumental sculpture for the plaza in front of the proposed Chicago Civic Center. By May, 1965, Picasso completed the maquette (model) of the sculpture. William E. Hartmann, the architect, who had been the chief liaison with Picasso, then had the maquette brought to the basement of the Art Institute of Chicago, without public notice. The design of the maquette was subjected to an engineering analysis to determine the feasibility of constructing the monumental sculpture and three Chicago charitable foundations undertook to finance the actual construction by contributing $300,000 toward the total cost of $351,959.17. An aluminum model of the design with some slight revisions was prepared as a guide to the construction of the sculpture, and Picasso approved a picture of this model on August 9, 1966.
The Commission, through its board, had been given a private viewing of the maquette. Subsequently, the Commission passed a resolution authorizing the payment of $100,000 to Picasso. This sum was intended as the purchase price for the entire right, title and interest in and to the maquette constituting Picasso's design for the monumental sculpture including the copyright, and copyright renewals. Hartmann proffered the $100,000 check to Picasso and asked the artist to sign a document referred to as the "Formal Acknowledgment and Receipt." Picasso refused to accept the money or to sign the document. He stated that he wanted to make a gift of his work. In accordance with Picasso's wish, counsel for the Commission and William Hartmann prepared the following "Deed of Gift" which Picasso signed on August 21, 1966:
In the fall of 1966 the Commission, the public relations department of the City of Chicago, the Art Institute of Chicago and the U. S. Steel Corporation, the latter being the prime contractor for the construction of the sculpture, began a campaign to publicize the Chicago Picasso. The campaign was directed by Hartmann, with help from Al Weisman head of the public relations department of the advertising firm of Foote, Cone and Belding.
As part of the campaign at least two press showings were conducted. The first was held on September 20, 1966, when the maquette was placed on public exhibition at the Art Institute. No copyright notice was affixed to the maquette. The following notice was, however, posted in the Art Institute:
Press photographers attended the showing at the invitation of the Commission and the Art Institute and later published pictures of the maquette and aluminum model in Chicago newspapers and in magazines of national and international circulation. In addition the Commission supplied photographs of the maquette and the uncopyrighted architect's aluminum model to members of the public who requested them for publication. The second showing took place in December of 1966 when the U. S. Steel Corporation, with the knowledge of the Commission, had completed a twelve-foot six-inch wooden model of the sculpture and invited the press to photograph the model. There was no copyright notice on the model and the pictures were published without copyright notice. U. S. Steel also hired a professional photographer to take pictures of the model and these pictures were used in the publicity drive.
The drive was seemingly successful for pictures of the Picasso design appeared in Business Week Magazine on May 6, 1967, and in Holiday Magazine in March, 1967. Fortune Magazine published three pages of color photographs about the Chicago Picasso including pictures of the U. S. Steel wooden model. The Chicago Sun Times, Midwest magazine published a cover story on the sculpture with a drawing of the maquette on the cover of the magazine. And a picture of the maquette was printed in U. S. Steel News, a house organ with a circulation of over 300,000. None of the photographs or drawings that were published in the above named publications bore any copyright notice whatever.
From June, 1967, through August 13, 1967, the maquette was displayed at the Tate Gallery in London, England. In conjunction with the exhibit at the Tate, a catalog was published wherein a picture of the maquette appeared. Neither on the maquette itself nor on the photograph in the catalog did copyright notice appear. The Commission had knowledge of these facts for on July 6, 1967, Hartmann had sent to the Chairman of the Commission the catalog which was placed in the Commission files.
On August 15, 1967, the monumental sculpture, "The Chicago Picasso" was dedicated in ceremonies on the Civic Center Plaza. The sculpture bore the following copyright:
© 1967 PUBLIC BUILDING COMMISSION OF CHICAGO ALL RIGHTS RESERVED
At the dedication, Mr. Hartmann, co-chairman of the event and master of cermonies said:
The Chairman of the Public Building Commission, in his speech of dedication
In conjunction with the dedication a commemorative souvenir booklet of the Chicago Picasso dedication ceremonies was prepared by the Commission. The booklet which contained drawings and photographs of the maquette and the aluminum model were distributed to 96 distinguished men and women from all areas of Chicago life and to honored guests. Neither the booklet itself, nor any of the photographs shown therein, bore any copyright notice. Also, on the day of the dedication the United States Steel public relations office sent out a press release together with a photo of the monumental sculpture. The photograph bore no copyright notice.
Subsequent to the dedication, the Art Institute published its Annual Report which contained an uncopyrighted picture of the maquette. This publication had a circulation of 40,000 copies, including museums and libraries. The Art Institute also continued selling a photograph of the maquette on a postcard. Between October 1966 and October 1967, 800 copies of this postcard were sold. In 1967, however, the Commission asked the Art Institute to stop selling the postcard and the Art Institute complied with this request.
In October 1967, the Commission caused to be engraved in the granite base of the sculpture the following legend:
In November, 1967, the Commission stated its policy that no individuals shall be restricted from "full personal enjoyment of the sculpture, including the right to take photographs and make paintings, etchings and models of the same for personal, non-commercial purposes." The Commission has also had a policy of granting licenses to copy the sculpture for commercial purposes. The Commission requires payment of a nominal fee and a royalty on copies sold. Several such licenses have been granted.
Finally, on January 12, 1968, the Public Building Commission filed its application with the Register of Copyrights asking a copyright in the monumental sculpture entitled "The Chicago Picasso." In due course a certificate of copyright registration was issued to defendant.
STATEMENT OF APPLICABLE LAW
Defendant submits that the attaching of notice to the monumental sculpture on August 4, 1967, and the later registration of the copyright were acts sufficient to obtain a statutory copyright under 17 U.S.C. § 10
To determine how a work comes to be in the public domain it is necessary to explore the basis of the copyright protection. The common law copyright arises upon the creation of any work of art, be it a first sketch or the finished product.
In some of the early English decisions there was debate as to whether publication did indeed divest its owner of common law protection.
In the United States, however, it has been clear, from the date the question first reached the Supreme Court, that the common law copyright is terminated upon the first publication.
One justification for the doctrine, that publication ipso facto divests an author of common law copyright protection, can be found in the copyright clause of the United States Constitution.
An exception to this rule is that a limited publication does not divest the holder of his common law protection.
Applying these general principles of copyright law to the facts of the case at bar the court is persuaded that the copyright to the work of art known as the "Chicago Picasso" is invalid. General publication occurred without the requisite notice. Accordingly, the common law protection was lost upon publication and the work was thrust into the public domain.
While this suit could have been resolved on any one of several distinct theories
DEFENDANT'S CLAIM THAT THE MODELS DID NOT NEED COPYRIGHT NOTICE
The defendant's basic contention is that the work of art is the properly copyrighted monumental sculpture not the models. In support of this thesis defendant correctly points out that what was always envisioned by the Civic Center architects and Picasso was a monumental sculpture for the Civic Center Plaza. There can only be one copyright in one work of art it is asserted,
The court takes a different view of the facts. When Picasso signed the deed of gift on August 21, 1966, there existed but a single copyright. Picasso
The maquette, however, was an original, tangible work of art which would have qualified for statutory copyright protection under 17 U.S.C. § 5(g).
DEFENDANT'S CLAIM THAT DISPLAY OF THE MAQUETTE DID NOT CONSTITUTE GENERAL PUBLICATION
Three arguments have been submitted to the effect that display of the maquette did not constitute general publication. First, defendant urges that display of the maquette at the Art Institute was a "limited" publication and thus did not place the Chicago Picasso in the public domain. In support of this position the defendant's prime authority is American Tobacco Co. v. Werckmeister.
It is this court's finding that the case at bar more closely resembles the situation postulated in the aforementioned dicta than it does the actual facts of the American Tobacco case. In the case at bar there were no restrictions on copying and no guards preventing copying. Rather every citizen was free to copy the maquette for his own pleasure and camera permits were available to members of the public.
Defendant's second assertion is that the display of the maquette was inconsequential since an unpublished work, model thereof, or copy thereof does not require a copyright notice.
Finally, defendant argues that the Art Institute did not hold the copyright to the maquette and therefore could not have placed notice on the maquette. The answer to this assertion is that the Commission, the alleged holder of the copyright, was required to insure that proper notice was placed on the maquette. The Commission was able to place improper notice at the showing, i. e., notice in the room, but it did not comply with the statutory requirement that notice be placed on the work itself in order to be effective.
DEFENDANT'S CLAIM THAT UNCOPYRIGHTED PICTURES COULD BE USED IN THE PUBLICITY CAMPAIGN
The defendant's major defense to the use of uncopyrighted pictures of the models in the publicity drive is what appears to be an inverse applicacation of the doctrine of "fair use". Generally it can be stated that certain acts of copying are defensible as "fair use".
Defendant has an additional defense to the uncopyrighted printing of pictures of the maquette, the wooden model, and the aluminum model. It is
The case at bar is distinguishable from the Goodis decision for in the instant case the newspapers and magazines that published the pictures of the work of art did not have as the Goodis court said, "such an interest in the work that notice of copyright in the publisher's name will protect the copyright * * *."
DEFENDANT'S CLAIM THAT PUBLICATION OF PICTURES OF THE MODELS CONSTITUTED INFRINGEMENT
The last major defense that the defendant advances in an attempt to excuse the uncopyrighted publication of the work of art is that the publications constituted unauthorized infringement, and therefore they did not place the work in the public domain.
Also, in its contract with the builder of the sculpture the defendant included provisions requiring that notice be placed on the sculpture and on all reproductions and drawings of the design.
Given these instructions the defendant argues that many of the instances of publication were actually acts of infringement because they were unauthorized and accordingly did not defeat defendant's copyright. The court has found no evidence for the period before notice was attached to the monumental sculpture on August 4, 1967, that the Commission intended to have its orders carried out. Rather, the great bulk of the evidence before the Court, shows that the Commission itself disregarded its own instructions. That instead of objecting to uncopyrighted publications, the Commission passively and in some cases actively engaged in the distribution of uncopyrighted pictures promoting the Chicago Picasso. The court on the facts before it could not find that any of the publications here in question constituted unauthorized infringing publications. Accordingly, this last defense submitted by the defendant must be rejected.
An analysis of the legal issues presented in this action compels the conclusion that the copyright to the Chicago Picasso is invalid due to the fact that the sculpture has entered the public domain. This decision comports with a strict adherence to copyright law and is also in consonance with the policy of enriching society which underlies our copyright system. The broadest and most uninhibited reproduction and copying of a provocative piece of public sculpture can only have the end result of benefiting society.
For all of the foregoing reasons this court hereby enters summary judgment in favor of the plaintiff and against the defendant.
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