US Copyright Protection for UK Artists

It is rare for visual arts copyright cases to end up at court.

Even more rare for the trial to be fully conducted and judgment given; most copyright cases are settled out of court. A recent case tried in the United States has important beneficial effects for European artists whose works may be thought not to be protected by US Copyright Law. It concerned the estate of MC Escher, some of whose works were reproduced and marketed in the US without licence or other authority from the artist’s copyright heirs.

The Facts
In 1968 Escher established the ‘MC Escher Foundation’ in The Netherlands to curate and promote his works via publications, exhibitions, lectures and so on. In 1972 Escher died. Copyright in his works will expire at the end of 2042. In 1984 all copyright in Escher’s works was transferred to the ownership of ‘Cordon Art BV, a company incorporated in The Netherlands. Cordon Art sells copyright licences authorising the merchandising of Escher’s images. A US merchandiser, Rock Walker, manufactured large numbers of articles which carried representations of 24 different Escher images and marketed them throughout the US. Moreover, Walker retailed these articles under the trading name ‘The MC Escher Museum Foundation’. Neither Cordon Art nor the MC Escher Foundation had authorised the reproduction of the images nor the use of the real Foundation’s name.

The Case
Cordon Art BV and the MC Escher Foundation brought proceedings last year against Rock Walker. The case was heard in the US District Court for Southern California (and, for those interested, is reported in 41 U.S.P.Q. 2D, 1224). The plaintiffs alleged copyright infringement of Escher’s 24 images, including celebrated works such as ‘Drawing Hands’, ‘Relativity’ and ‘Waterfall’; trademark infringement and unlawful interference with the plaintiffs business through the encouragement by Walker to Cordon Art’s copyright licensees not to pay royalties to them.

The Copyright Issue
Under US Copyright Law between 1909 and 1978, visual works published in the US were required to display a copyright notice or, in certain circumstances, to have been registered for copyright protection purposes. If such works did not carry such a notice, or were not registered, they did not have the protection of US Copyright Law.

However, in 1992 US Copyright Law was amended. The important changes give effect, in US Copyright Law, to the most recent series of intergovernmental trade agreements made under GATT (the General Agreement on Tariffs and Trade). In essence, the changes gave copyright protection in the US back to non-US copyright owners whose works had lost protection through failure to comply with the procedural requirements for copyright notice or registration. Such copyright protection was restored, so long as: the work in question was made by a national of a country which was a signatory to the international Berne Copyright Convention, and the work was still protected by copyright law in the country where copyright was first achieved.

These changes in US Copyright Law were at the heart of the dispute. Walker agreed that the 24 Escher works had lost their copyright protection in the US through failure to display the required copyright notice, and that he was therefore free to reproduce the images without authorisation from the plaintiffs.

One of the most interesting aspects of the case centred on the way the works had been made. The final works in existence today started life as graphic representations made with pencil and paper. Escher then reproduced these images by creating woodcuts or lithography stones, referred to as the ‘master blocks’, from which he then pulled prints by hand to create the final limited editions.

Ownership of copyright needs to be determined by reference to the making process. The images contained in Escher’s original pencil drawings automatically acquired copyright protection in The Netherlands; the further processes described above reproduced these copyright images into different media: the master blocks and finished prints. Walker argued that Escher’s prints had been published in the US without the necessary copyright notices, and were not therefore protected by US Copyright Law. The plaintiffs begged to differ. Their arguments were fascinating: the original graphic drawings and roaster blocks were never published in the US- only the resulting limited edition prints (which Walker had seen published but not bearing copyright notices) – and therefore were still protected by US Copyright Law. Their further or alternative argument (if necessary) was that, even if copyright had been lost through failure to publish a copyright notice, the copyright had been restored in 1992 through amendments to the US Copyright Act 1976, enacted by Congress following the GATT agreement. These were the issues. Walker freely admitted reproducing Escher’s works without authority.

The Judgment
The court found in favour of the plaintiffs, holding that Walker’s argument failed because the original drawings and master blocks were protected by copyright law at all times in the US. Moreover, the court ruled that, even if copyright had been lost at any time prior to 1992, it had been restored by the amendment to US Copyright Law enacted by Congress following the GATT agreement.

The court’s reasons were as follows: the original drawings and roaster blocks were never published in the US, and therefore were protected by US Copyright Law. The final limited edition prints (that were published in the US) were effectively reproductions based almost entirely on the original drawings and master blocks, and were not therefore substantially ‘new’ works that would have required copyright notices in order to be protected.

As for the amendment to US Copyright Law following the GATT agreement, the court explained that Escher’s prints fulfilled the three criteria required by US law after 1992 to prove that any lost copyright had been revived: the works were still protected under Dutch Copyright Law; any copyright lost in the US was because of failure to comply with US procedures (ie no copyright notice) and Escher was at all times a Dutch national entitled to the protection of the Berne Copyright Convention (because The Netherlands is a signatory, as is the US).

Thank goodness UK Copyright Law is more straightforward than in the US. We have no legal requirement that works have to carry a copyright notice or have to be registered in order to be protected against copyright infringements. In the UK, copyright is automatically acquired by the artist as soon as he or she makes a work. That said, it is sensible for the artist to endorse upon the work, preferably on its face, margin or bleed: ©; Year of making; initials or name (eg © 1997 Henry Lydiate). Such an endorsement or notice is required in any event for works to be protected outside the UK in countries which have also signed the Berne Copyright Convention (which includes most developed countries in the world).

The case also sets a precedent for European (including UK) artists and their heirs who understood their copyright work to have lost protection against infringement in the US through any previous failure to register or display a copyright notice there. Such ‘lost’ copyrights now appear to have been restored.

© Henry Lydiate 1997

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.