My bid won a collection of original artwork from an estate sale. About 50 beautiful landscape oil paintings (possibly Bob Ross influenced) but as far as i know, the original painter is, #1 deceased, #2 his family had no interest in the artwork, and #3 never commercially sold.
Since i bought them at an auction, do i now own the rights to duplicate and commercially sell this art?
When i owned a record store, i would see ALL the time, artists who self-released a CD, and then fell off the face of the Earth. I have probably 200 albums in my personal collection that have absolutely zero internet presence.
Assuming the original musician is alive, they would own the rights, but what if that musician has no interest in the past material?
What if the musician is deceased? Maybe a family member would own the rights, but they don’t know it exists either. Is this material public domain in that situation?
People who own intellectual property rights may, for a variety of reasons, not enforce them. That does not mean that other people now own the intellectual property rights, or can come to own them simply by asserting that they do.
When the artist’s copyright expires, then anyone is allowed to make copies. This might be made difficult if you own the only copy and keep anyone else from seeing it, but if you make copies and distribute them, then anyone with one of those copies could make their own copies and do whatever they want with them, including selling them.
Copyright in general extends for the artist’s life plus 70 years. There are a few other provisions that might extend this but that’s the most general rule.
Assuming the paintings were produced less than 70 years ago (since you mention Bob Ross I assume they were produced much more recently) and the artist is deceased, then the copyright is owned by his or her heirs regardless of whether or not there was a will, or whether the copyright was specifically mentioned in a will.
In order to make copies and sell them legally, you would have to locate the copyright holders and obtain the rights from them, or arrange pay them a fee or royalties for making and selling copies.
In effect, copyright is property that can be inherited, bought, or sold like other property. Possession of the physical original does not include the copyright. Unless provision is made, the copyright passes to the artist’s heirs.
Now since the heirs do not have physical possession of the originals, and may be unaware of them, they can’t make copies either. So the OP would have leverage to make a deal with them if he thinks reproductions have commercial value. However, he does not legally have the right to make copies and sell them on his own.
A copyright owner does not need to know they own the copyright to own it. (especially true if they inherit it). I’ve pondered this question with scientific papers my dad published. If his estate was split three ways, but copyright was not specifically mentioned, that would imply any future publication would need consent of all three heirs (plus any collaborators and/or their heirs). I assume scientific journals avoid this by taking copyright ownership when they publish.
But if a person is not aware they own copyright today, does not mean they might not realize it 69 years from now. There are interesting rules about this that make it advisable to consult a lawyer - IIRC extra damages accrue from the time the person was made aware of the violation, etc. And, whether the activities of the violator ruin the market for the copies… Plus, if they have no extant copies of the works then how would they know/prove they own copyright, other than artist signatures? Unless there’s a distinctive style, or they run across a picture of grandpa with the painting over the mantle in the background or something… (Or more cleverly, they took a picture of everything before it was sold.)
There’s a similar issue with software. Stuff that was written for DOS for a 286 computer probably is not only irrelevant today but unmarketable - but that doesn’t mean the copyright is gone. As demonstrated with retro video games (think Space Invaders) there sometimes a surprising market for the product even if the original owner is lost in space or the murky recesses of multiple buyouts and bankruptcies…
Yes, but a random painting by some guy that died a few years ago isn’t in the public domain. The copyright belongs to their heirs, until 70 years after they died. Then it becomes public domain. It doesn’t become public domain just because you don’t know who the heirs are, and the heirs don’t know or care about the work. Or, if the creator sold the copyright to some other party, that party is the copyright owner. As was said before, just buying the work doesn’t give you copyright to that work. As a simple example, you can buy a book from a bookstore, but that doesn’t mean you can print and sell copies of that book.
Of course there are untold millions of works that are still in copyright, but nobody knows who owns the copyright, not even the copyright holder. These paintings are a perfect example. The creator first held the copyright. But you don’t even know who the creator was, you just bought the paintings in an anonymous auction. If the creator is still alive and didn’t transfer the copyright, he’s still the owner. If he’s dead, his heirs own the copyright, whether they know it or not, whether the work is valuable or not, whether anyone actually wants to copy the work or not.
If nobody can track down the copyright holder because nobody knows who the creator was, or who his heirs were, or who he transferred the copyright to, the work becomes abandonware. It is not public domain, it is still under copyright, and only the copyright holder can legally copy it. Since no one knows who that is, it means that no one can legally copy the work. It also means that since a work becomes public domain 70 years after the death of the creator, it could be difficult to establish exactly when the work will become public domain, because when did the creator die? This doesn’t turn out to be much of a problem in practice, because very few 70 year old abandonware works are worth copying.
But suppose you decide that these paintings you bought at auction are masterpieces. You own the works, but you don’t own the copyright. You can sell the paintings, but you can’t print up postcards duplicating the paintings. Somebody owns the right to make copies of the painting, but that person is not you. They are not public domain, so your next door neighbor can’t print up lithographs of the paintings either.
No, you can’t assume that. Unless it is obviously in public domain, somebody somewhere owns the copyright. Your mission is to figure out who - the secretary will disavow any knowledge of your actions… Obvious would be for example if the work is old enough to have copyright expired which, unless you know when the artist made it and when they died, could be near 160 years old…); or if that photo was taken by a monkey…
Things can be complicated - Google:
“monkey selfie” - monkey stole a camera and took a picture of himself. PETA tried to claim the monkey owned the copyright and they were acting on his behalf. IIRC the latest ruling is that only people can hold copyrights, so a monkey taking a pic is no more copyright than a wind accidentally blowing over a can of paint onto a canvas.
Copyright for “Happy Birthday” - the “owners” fudged the publication date of a song written in the late 1800’s and collected royalties until a few years ago when they lost a case. (Which is why many restaurants did not use the traditional song when embarrassing patrons) They claimed an arrangement was the original publication in the 1930’s.
Copyright for Sherlock Holmes. Some of Doyle’s last few books published in the 1930’s are still copyright; but IIRC the original main body of work is public domain. So your own Sherlock character cannot include any details that were only mentioned in those last few books.
Not under U.S. law. Since 1978 all works enter copyright the minute they are in fixed form. The owner of the copyright is also fixed. Unless the copyright is sold, the original owner or the heir owns the copyright for life of the creator plus 70 years. It cannot be “unowned.” It cannot enter the public domain until the copyright period is over. Since there is legally always an owner, then legally there always is an owner who has to give permission. Yes, this is a problem for people who want those works whose owners are hard to track down. The premise of the law is that this is a far lesser problem than allowing nonowners to profit at the expense of creators.
Note that life+70 doesn’t apply to all works. Works for hire are usually 95 years under recent US law. (Terms in other countries vary.) So YMMV indeed.
The normal term for works whose copyright ownership is uncertain is “orphan works”. There has been an effort to allow non-profits (note) to use orphan works if a reasonable search for copyright owners has failed. But no proposed law has gotten out of Congress.
“Abandonware” is a coinage applied to software.
If you don’t hold the copyright, forget it and move on.
Well, yes, public domain property is in the public domain. If that’s your point, then it’s obviously valid.
You made the unadorned point in the context of a thread about property that is owned and certainly not public domain, though. I never would have guessed you meant anything other than saying that the property the OP referred to was unowned.
I don’t read minds. And I’m definitely glad about that, given what I know about minds.
“Unowned intellectual property” is a contradiction in terms. Property is, by definition, owned; that’s what makes it “property”.
When intellectual property rights expire, what you have is not unowned intellectual property; it’s an absence of intellectual property.
What you can have, obviously, is intellectual property whose owner you cannot identify.
That’s not in the public domain. But if the owner is unaware of/uninterested in his rights/unlikely to become aware of your abuse of his rights, there may in practice be no sanction for treating it as though it were in the public domain
The statement “unowned creative works are in the public domain” is both true and meaningful: If there really is no owner for a work, then anyone can do whatever they want with it. This is in contrast to, for example, physical property: If a lump of gold is unowned, then whoever finds it can claim ownership of it, after which point they and they alone own it and nobody else is allowed to do anything with it.
The catch is just that an unowned creative work isn’t as common a situation as many people think. If it’s recent, then it’s owned by someone (with a few exceptions, like the monkey selfie and works created by or on behalf of the federal government). But there are still plenty of works which are genuinely unowned (all of the works of Shakespeare, Cervantes, and Homer, for instance), and nobody can just pick them up and claim them.
You seemed to be asking - “if nobody else claims it but it’s not copyright expired, can you own it?” No, someone still owns it until the copyright expires.
You can pretend to own it, or pretend it’s public domain (depending on how obvious the age is) and see if someone objects and sues you. If you’re lucky you get away with it. But… you can’t “claim” it. There are no squatters’ rights on intellectual property. Thanks to the paranoid MPAA and RIAA I think the USA has *criminal *copyright violation, so deliberately making money off someone else’s IP could get you in some situations into bigger trouble.
Perhaps what you are thinking of is trademark. If you fail to protect your trademark, it could become public domain through common usage. Kleenex anyone?
There is a third, very narrow class: A non-American creative work that had lapsed into American public domain in accordance with US copyright law before the Uruguay Round of trade negotiations. The Uruguay Round Agreements Act of 1994 harmonized US copyright law with the provisions of the treaty, and resurrected the copyright status of several notable non-US works (such as Fritz Lang’s Metropolis or Prokofiev’s Peter and the Wolf).