Commons:Public art and copyrights in the US

Shortcut: COM:PACUSA

This document was created by User:Lmallek, an attorney interning for the Wikimedia Foundation. It does not represent legal advice from the Wikimedia Foundation, but is simply a starting point to encourage discussion on the issue. The Wikimedia Foundation encourages the community to review, comment on, and even correct this document if appropriate. See the talk page for more.

Statues and art installed in public places in the United States can fall under the protections of the Copyright Act if they are deemed to be “original works of authorship” fixed in a tangible medium. The Copyright Acts of 1909, 1976, and amendments have created different requirements to receive and maintain copyrights protections.

Due to these requirements, statues and art installed in a place open to the general public prior to 1978 are likely in the public domain if they do not comply with copyright formalities. The same works installed in 1978 or after are more likely to be covered by copyright law due to the changed definition of "publication" and the minimization of statutory formalities.

Before 1978

Prior to 1978, copyrighted works, including statues, first published or registered in the USA that failed to comply with all of the required copyright formalities lost their copyright and entered the public domain. This means that "publishing" a copyrighted statue without satisfying the requirement that notice of the copyright be displayed (or “visibly perceived”) ended the copyright of the statue and placed it in the public domain. (17 USC § 401(a); see Nimmer on Copyrights § 4.02(B)2 and 17 USC § 303.) And while copyright holders for works published between 1964 and 1978 have automatically extended renewal of their copyrights, once the original copyrights were terminated, they could not be renewed. See 17 USC § 303(a).

These notice requirements place a premium on knowing when a work has been published. The 1909 Copyright Act fails to include a definition of “publication.” (Nimmer, § 4.039(A).) However, relevant decisions established that “publication occurred when … the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public...” (Nimmer, § 4.039(A) Internal citations removed.)

Courts ruled that a general publication occurred with the distribution of a “tangible” or physical copy in a way that allows dominion by the public. (See King v. Mister Maestro, Inc., 224 F. Supp. 101, 107 (S.D.N.Y. 1963) stating that possession of tangible copies creates a possessory interest in the public which defeats the copyright). Additionally, exhibiting, displaying, or releasing the work in a public place where anyone can make unrestricted copies of the work could publish the work. In American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299 (1907), the court ruled that exhibiting a work in a closed gallery setting that did not allow copying was insufficient to qualify for publication because the location restricted the public's dominion over the work. The court noted, however, "We do not mean to say that the public exhibition of a painting or statue, where all might see and freely copy it, might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect. But such is not the present case, where the greatest care was taken to prevent copying." One case which relied (in part) on this ruling was Letter Edged in Black Press, Inc. v. Public Building Commission of Chicago (1970), which declared the Chicago Picasso to be public domain precisely because no measures against photographing or otherwise reproducing the model of the sculpture had been taken when that model was exhibited at the Art Institute of Chicago without a copyright notice.

Applying these elements to statues means that if the statue was placed in a public location without restrictions on copying prior to 1978, the work was probably published. If the published work did not comply with the copyright formalities (notice requirements), the copyright ended, placing the statue in the public domain. However, it is important to remember that statues and public art that complied with formalities requirements at the time of publication could still fall under copyright protections.

	Has it been published?	No copyright notice included.	Copyright notice included.
Statue has not been published.	Placing a statue in a controlled environment where people can not make copies does not result in publication. Example: showing the statue in gallery that does not allow copying.	If a work was not published, then there are no required formalities, and the copyright could still be in effect. may still be in copyright	The work retains copyright protections whether it is publicly displayed or not. may still be in copyright
Statue has been published (before 1928).	Publication requires placing the statue in a public location where people can make copies. Example: showing the statue in Golden Gate Park.	A statue published prior to 1928 will be in the public domain. {{PD-US-expired}}	A statue published prior to 1928 will be in the public domain. {{PD-US-expired}}
Statue has been published (after 1927, before 1978).	Publication requires placing the statue in a public location where people can make copies. Example: showing the statue in Golden Gate Park.	A statue published prior to 1978 without a visible copyright registration notice loses its copyright protection and enters the public domain. Confirm that the statue does not have a copyright notice. {{PD-US-no notice}}	A published statue that included a visible mark did not lose copyright protection when it was published and may still be covered. may still be in copyright

After 1978

After 1978, copyright requirements changed substantially. These changes include eliminating requirements for both formalities and publication. Works not published before 1978 are much less likely to be in the public domain. The Copyright Act of 1976, and subsequent amendments, made important changes: they softened and then removed formalities requirements, and, after 1989, publication no longer affected the copyright status of a protectable work.

1978 to March 1, 1989

Between 1978 – 1989, a work published without copyright notice (and therefore no formalities) could maintain its copyright by registering the work within 5 years of publication. After those 5 years, the work entered the public domain. Since 1978, publication has been defined as

“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” (Italics added.)

This definition prevents the exhibition of a statue in a public location from being considered a “publication.” (See Nimmer 4.09 stating that “it is clear that [a public display without concurrent sale of copies] made on or after January 1, 1978, does not constitute publication.”) This definition of publication requires more than displaying a work to the public: it requires that individuals gain a possessory interest in a tangible copy of the work as a “transfer of ownership.”

Between 1978 and March 1, 1989, copyright protections could expire (and the work enter the public domain) if, without registering the work with the copyright office, the work was published, meaning that tangible copies including photographs, models, or other representations of the copyrighted work were sold. If authorized tangible copies were not made available, then copyright protections were retained regardless of registration.

1978 until March 1989	Has it been published?	Requirements to maintain copyright.
Statue has not been published.	Display in a public location does not publish the work.	No requirements because the work has not been published. Copyright protections are maintained.
Statue has been published.	If tangible copies of the work have been sold to the public.	A work would not lose copyright protections if: 1) it was registered and published with a copyright notice; 2) it was registered within 5 years of publication; 3) it was published on or after March 1, 1989, when notice requirements ended. {{PD-US-1978-89}} may apply.

Finally, even if a post-1978 statue is published, it is very possible that the work will remain protected by copyright due to the reduced formality requirements. For example, works publicly displayed after 1989 with copies generally available for purchase can retain full copyright protections without registration or notice.

March 1, 1989 to the present

Starting in 1989, publication no longer impacted the copyright status of a copyrightable work. Currently, a work gains copyright protection when it becomes fixed in a tangible medium. A statue or piece of artwork can be displayed publicly, privately, replicated, or never copied and still retain copyright protection. As the US does not have freedom of panorama for such works (see COM:FOP US), this means that photographs of such works cannot be hosted on Commons (unless the work is incidental to the photo, i.e. de minimis applies).

Conclusion

Copyright law has some quirks that can determine the public domain status of statues and monuments placed in public parks. Because of these quirks, determining the copyright status requires first, knowing when the statue was placed in a public location and, second, whether or not it satisfied the notice requirements applied at that time.

The current application of these requirements has led to some surprising cases including a case about the Korean War Memorial see the opinion and some discussion and articles and one about the Wall Street Bull.