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Casebook: Jack the Ripper - Message Boards » Suspects » Sickert, Walter » Sickert's Copyrights & Other Legal Issues « Previous Next »

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Mark Starr
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Posted on Saturday, February 07, 2004 - 1:26 pm:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Does anyone KNOW the status of the copyrights in the UK on Sickert's paintings -- as opposed to guessing how what they may have vaguely heard second-hand years ago about copyright might now possibly apply to Sickert's paintings? Are any of Sickert's suspicious Ripper-linked paintings still protected in the UK?

In the US, absolutely everything created in the US before 1923 is in the public domain. Under the old law, it does not matter when the creator died. It only matters when a work was created in the US. However, if any of Sickert's pre-1923 paintings are still protected in the UK, does that mean that they are also now protected in the US by international copyright treaties respecting foreign copyrights?

In the US before 1958, there was no automatic copyright as there is now (and it is not retroactive.) The only way a work could be copyrighted was to register the copyright for 28 years and then renew it for another 28 years. What about the UK? Would Sickert have had to register his paintings for copyright in the UK in order to have a copyright in the UK? Did Sickert in fact register for copyright any of his paintings?

Does anyone know if Sickert left a will? Besides his widow, Therese, did he leave anything to anyone else? What about his copyrights? Did he will them to anyone. For example, like any of the scores of illegitimate children he is now accused by some of having fathered. For example, like Joseph Gorman Sickert (who never produced an iota of proof that Walter Sickeret was his father, or that he ever talked with Walter Sickert.)

If Joseph Gorman Sickert was Walter Sickert son, then why didn't Patricia Cornwell try to link Joseph Gorman Sickert's DNA to the Ripper letters and to the mDNA on Sickert's paintings? She never mentions Joseph Gorman Sickert. Who are Sickert's other suspected illegitimate children?

I know there is now a Sickert Trust. Who gets the money?

Regards,
Mark Starr
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Ally
Inspector
Username: Ally

Post Number: 275
Registered: 4-2003
Posted on Sunday, February 08, 2004 - 10:42 am:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Patricia Cornwell did not mention Joseph or attempt to link his DNA to Sickert's because her entire theory hinges on Sickert being impotent and incapable of having sex, much less fathering children. She even went so far as to assert with total confidence that he never had sex with any of his wives. Therefore, logically, she could hardly attempt to link an illegitimate child to a man who can't have sex.
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Dan Norder
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Posted on Friday, February 13, 2004 - 1:56 pm:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Mark wrote:

"However, if any of Sickert's pre-1923 paintings are still protected in the UK, does that mean that they are also now protected in the US by international copyright treaties respecting foreign copyrights? "

No. Those treaties respecting foreign copyrights did not extend to old foreign copyrights. Many US corporations end up respecting foreign copyrights so they can publish the works in those countries too, as it's rare when larger companies do things for the USA only these days.

"In the US before 1958, there was no automatic copyright as there is now (and it is not retroactive.) The only way a work could be copyrighted was to register the copyright for 28 years and then renew it for another 28 years. What about the UK? "

I am pretty sure that in the UK at the relevant time period it was life of the artist plus 50 years, which would mean that all of his works would be out of copyright at this time.

I'm not 100% positive on that, but since I'm in the US the UK copyrights for those old items don't apply so it's not relevant to me.

Of course the trick here is that photos of his artwork would most likely have new copyrights covering their artistic depiction of the work. Unless you have access to the originals and take your own photos, you are probably out of luck.

Courts have yet to decide just what is involved in making images of other items "artistic" enough to qualify for copyright protection, and it's quite possible that some strictly straightforward reproductions of the images (like a straight photocopy of an old copyright-expired photo of them) wouldn't be unique enough to be covered. Of course proving those one way or another would require a court case, and even going to court in the first place is usually too expensive to entertain as a solid plan.

If you are looking to use his paintings somewhere your best off looking for permission from someone who took photos of them. Art museums, presumably, though some may be available from arts rights clearinghouse companies, such as Corbis.

Ally answered the question about Cornwell already, the others I don't know about.
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Mark Starr
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Posted on Friday, February 13, 2004 - 5:13 pm:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Dan Norder wrote:
>Of course the trick here is that photos of his artwork would most likely have new copyrights covering their artistic depiction of the work. Unless you have access to the originals and take your own photos, you are probably out of luck.

Dan:
This used to be true, but right now in the US all copyrights of photographs of works in the public domain have been invalidated by the 1999 Corel vs Bridgeport precedent-setting decision in the US Court of Appeals in Washington, DC. According to this decision, US courts will no longer enforce copyrights of photographs of 2-dimensional works in the public domain such as paintings when the photographs are merely accurate reproductions. In order to obtain a new copyright on a photograph of a work in the public domain, you have to add new significant artistic content -- and then the copyright applies only to the new content that you added, not the public domain original.

Interestingly, the court decision specifically exempted photographs of three dimensional works like sculpture and architecture because it said that photographic angles and lighting effects might constitute new significant artistic content. However, the court also specifically refused to award protection to photographs of any two-dimensional works such as painting, even when a photo might show the thickness of the paint or the brush textures.

By significant new artistic content, the court said it means exactly that: new and significant. The court added that copyrights are not upheld for "the sweat of the brow" no matter how difficult and costly it may be to make a good photographic reproduction. Documentary accuracy is not considered to be new significant artistic content.

This decision has already had an enormous impact on the income of art museums in the US. The Met, for example, has always claimed copyrights on its own photos of its Rembrandts and Vermeers, etc. It forbade the photographing of its paintings by others (and probably will continue to do so.) But now, anyone can copy the Met's copyrighted photographs of public domain works without permission. No US Court will enforce the Met's copyright on these photos. The days when the Met and other museums could extend a de facto copyright centuries beyond the legal term limits are now over.

I don't know if copyright laws in EU contries have followed suit yet -- but I would bet my DVD of "From Hell" that all EU countries will eventually come to the same decision.

Regards,
Mark Starr
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Dan Norder
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Posted on Sunday, February 15, 2004 - 4:58 pm:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Mark wrote:
"This used to be true, but right now in the US all copyrights of photographs of works in the public domain have been invalidated by the 1999 Corel vs Bridgeport precedent-setting decision in the US Court of Appeals in Washington, DC."

You have a significant number of errors in that paragraph, which makes most of the conclusions in the rest of your post on unstable ground as well.

It was actually *Bridgeman* Art Library, Ltd. v. Corel Corporation, and it went to *district court* in *New York* but was not appealed. As such it is *not* legally binding across the area covered by the 2nd District court system, let alone the full United States, and forget about anywhere else.

(It also most certainly does not invalidate "all copyrights of photographs of works in the public domain" as you stated in your first paragraph. As you made mention of later, it specifically only covers two dimensional works to which no artistic changes were made.)

That means that someone can still sue you if you reused their photograph of a painting, and you would have to go to the expense of defending yourself to reaffirm that right. My web search has foud a number of museums explicitly saying that they will sue to try to stop anyone from reusing their photographs until such time as there is legally binding precedent in their area. (But if you want to avoid that they will gladly sell you rights for a fee that, while large, would be considerably less than that of defending yourself.) Individual museums and companies that license reproductions on their behalf can choose to sue or not sue.

In other words, what you are proposing to do sounds legally right, but you still could find yourself having to pay lawyers to defend that right. And I'm sure that if it came to that you'd lose a lot more than your DVD of "From Hell" even if you eventually won in court.

The decision on how to procede is yours, of course, but I urge caution. Regardless of what you choose to do, I thought it important to let the people here know what the actual legal situation is instead of just accepting your take on events. I suggest anyone who wants to make decisions regarding these issues consult with a good intellectual property lawyer.
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Mark Starr
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Posted on Monday, February 16, 2004 - 11:55 pm:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Dan:

My calendar says we are now in 2004. The Bridgeman (thank you for the correction) vs Corel case was decided in 1999. To date, no museum has appealed the case to a higher court. Why?

In an interesting analysis of this decision on the web, Prof. Marilee Hansen writes:
''It is interesting to note that many museums, and the American Association of Museums, were unhappy that Bridgeman brought the case against Corel, surmising (correctly, it turned out) that the Court would not rule in their favor. In fact, the Court quoted a former general counsel from the Museum of Modern Art, New York in rendering its decision. Museum directors, like everyone else, knew that exact reproductions did not possess the necessary creativity to have their own copyright." She adds that the Bridgeman vs Corel decision "merely reflected an earlier ruling by the Supreme Court which stated that "sweat of the brow" (for example, the act of reproducing a work) is not the "creative spark" which deserves copyright."

Museums can threaten lawsuits all they like, but it is clear that they have not appealed the Bridgeman vs Corel decision in four years and they will not appeal it in the future because they all know that a higher court will either dismiss their appeal without hearing it or they will lose their case. The Bridgeport vs Corel decision is the highest federal court judgement on this copyright question. Unless it is overturned or modified someday by a higher court -- which is highly unlikely in view of the previously cited decision by the US SUpreme Court -- it is the de facto precedent. If the museums ever appeal, they risk having more of their copyrights invalidated in a more restrictive decision. The distinction about 2-dimensions and exempted 3-dimensions might be tossed out by a higher court. Museums cannot risk losing the photographic copyrights that are still intact. A copyright is worthless protection if you cannot defend it in court.

There is yet another reason why museums will not be able to claim copyrights on photos of 2-dimesional works in the public domain. This is not a reason that I dreamed up. This comes right off of a legal website of an association of art museums. The Digital Copyright Act makes it a criminal offense for anyone to knowingly claim a copyright on a work that he has no right to copyright. The legal counsels of museums are advising their clients not to claim any copyrights on photographic copies of 2-dimensional works in the public domain made after the Bridgeman decision in 1999. These legal advisors say it might be a criminal offense for the museums to claim copyrights on any such photos after the decision was announced.

You wrote: "My web search has foud a number of museums explicitly saying that they will sue to try to stop anyone from reusing their photographs until such time as there is legally binding precedent in their area."

Then why haven't they sued anyone yet?

Regards,
Mark Starr



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Dan Norder
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Posted on Wednesday, February 18, 2004 - 12:15 am:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Mark wrote:
"My calendar says we are now in 2004. The Bridgeman (thank you for the correction) vs Corel case was decided in 1999. To date, no museum has appealed the case to a higher court. Why? "

Because only the losing party in the lawsuit can decide to appeal, and they didn't. You have a pretty poor grasp of the law if you think someone outside of the case can appeal it.

Even if they could appeal someone else's case, there would be nothing to appeal because this case is not binding in any way to anyone else.

"The Bridgeport vs Corel decision is the highest federal court judgement on this copyright question."

You're missing the point. It's NOT a federal court. It holds no power over anyone except the litigants in that one case.

From what I gather, most of Sickert's works are in a museum in Canada, so even if this case were binding in the US (which it is not) it would have no effect on them at all. Ditto for your understanding of the US Digital Copyright Act.

But then if you want to risk it, hey, all the more power to you.
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Mark Starr
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Posted on Thursday, February 19, 2004 - 5:44 am:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Dan Norder wrote:
>You're missing the point. It's NOT a federal court. It holds no power over anyone except the litigants in that one case.

Well, that's wrong. Of course Bridgeman vs Corel was indeed decided in a Federal court. The court
was the Federal District Court in New York. The judge that made the ruling was a Federal judge. And all copyright laws are Federal laws, and only Federal laws. And you say I'm missing the point?

Let's see if Barry G. Szczesny, Government Affairs Counsel for The American Association of Museums, is also missing your point. After the
Bridgeman decision, Szczesny stated in his report to the AAM (later published and widely quoted): "This is one of the most relevant copyright decisions for museums in years. A Federal district court in New York in November held that photographic reproductions of two-dimensional works, which themselves are in the public domain, do not have the requisite amount of originality to be protected by copyright. While this ruling was under British copyright law, the court noted it would have come to the same conclusion under U.S. law. At Bridgeman's request, this same district court revisited its decision and issued a revised opinion in
February reaching the same conclusion, but doing so under U.S. law. Thus, this new ruling is more damaging to the status quo than the original."


And Dan also wrote:
>Because only the losing party in the lawsuit can decide to appeal, and they didn't. You have a pretty poor grasp of the law if you think someone outside of the case can appeal it. Even if they could appeal someone else's case, there would be nothing to appeal because this case is not binding in any way to anyone else.

Let's see if Mr. Szczesny also has a poor grasp of the law. In his report to the directors of American museums, he wrote: "Although Bridgeman retained an alternative and reputable counsel for
an appeal, we were recently informed that it will not go forward, citing a lack of financial resources. This is good news. We already had decided (with validating advice from a number
of museum general counsels) to stay away from any appeal, and were prepared to encourage Bridgeman not to appeal, for the following reasons: Just about every museum attorney looking at the case objectively thinks it came out the correct way according to U.S. copyright law. THAT'S WHY NO MUSEUM HAD EVER BROUGHT SUCH A SUIT [capital letters by Mark Starr.] The U.S. Copyright Office informally agrees. Thus, no one saw any real
chance for reversal on appeal. In addition, AN AFFIRMATION BY THE SECOND CIRCUIT, arguably the most influential court on copyright issues, WOULD BE EVEN MORE DAMAGING."

If, as you wrote, the Bridgeman vs Corel decision "holds no power over anyone except the litigants in that one case," then why is the Government Affairs Counsel for the Association of American Museums concerned about damage to museums' copyrights of photographs of 2-dimensional PD works?

And as I noted in my previous post, here we are in 2004 and still no museum has brought such a suit against anyone. This, despite the millions of copies of museum photographs of 2-dimensional PD works that have been reproduced and distributed each and every year since 1999 by easily identifiable sources -- including major companies and institutions, as well as individuals.

As I stated, the Bridgeman vs Corel decision is a de facto precedent throughout the US. In the future, no museum is going to sue anyone who reproduces a photograph of a 2-dimensional PD work because the museums have been forcefully told by their lawyers that they will lose in court -- first at the Federal district level. And if they appeal that loss in a circuit court, they will not only lose again, they risk far worse damage than they suffered in the Bridgeman decision. A claim of copyright that you cannot defend in court is worthless.

And Dan also wrote:
>From what I gather, most of Sickert's works are in a museum in Canada, so even if this case were binding in the US (which it is not) it would have no effect on them at all.

There are 56 works by Sickert in the Tate Gallery in London. There are works by Sickert, including his oil painting "Jack The Ripper's Bedroom" in the Manchester Art Gallery. There are works by Sickert in museums in Wales and Liverpool and in private collections throughout the UK. There are works by Sickert in the Met in New York, in the Cleveland Art Museum, in the San Francisco Palace of Fine Arts, in the Getty Museum in Los Angeles, in the Minnesota Art Institute, the Boston Museum of Fine Arts, the Appleton Museum in Florida, and the National Portrait Gallery in DC. There are also about a dozen oils in Canada in Lord Beaverbrook's collection (most of those are portraits of Lord Beaverbrook, his family and his friends.)

Moreover, the country in which a painting or a museum resides is irrelevant to the question under discussion. The only relevant legal factor is the country in which a copyrighted photo is reproduced and distributed without permission. If someone reproduces in the US a photograph that was copyrighted in Canada by a Canadian museum, the Canadian museum would have to sue in Federal district court in the US under US copyright law. That too will never happen for the same reason an American museum will not sue now. They would lose.

Finally Dan wrote:
>Ditto for your understanding of the US Digital Copyright Act.

In his report to the AAM, Mr. Szczesny concluded: "In addition to economic concerns, an additional Bridgeman problem that Steve Weil (Emeritus Senior Scholar at the Smithsonian's Center for Museum Studies) raised is the potential for a museum to run afoul of the criminal provisions of Section 506 of the Copyright Act for the fraudulent use of a copyright notice. However, it was generally agreed that museums would be safe with notices placed on public domain works prior to Bridgeman, because to run afoul of the criminal provisions you need to have fraudulent intent."

AS I noted in a previous post: "The Digital Copyright Act makes it a criminal offense for anyone to KNOWINGLY claim a copyright on a work that he has no right to copyright. The legal counsels of museums are advising their clients not to claim any copyrights on photographic copies of 2-dimensional works in the public domain made after the Bridgeman decision in 1999. These legal advisors say it might be a criminal offense for the museums to claim copyrights on any such photos after the decision was announced."

Regards,
Mark Starr




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Dan Norder
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Posted on Friday, February 20, 2004 - 1:21 am:   Edit PostDelete PostView Post/Check IPPrint Post   Move Post (Moderator/Admin Only)Ban Poster IP (Moderator/Admin only)

Mark,

I erred when I said it was not a federal court. You keep using the term federal as if it meant nationally, and I slipped up and used it the same way (as most cases have to be appealed to get to federal court and this one was never appealed). It was a federal court, but it was not an appeals court or the Supreme Court. Something does not become legally certain everywhere in the US unless the issue goes through a lengthy appeals process all the way to the Supreme Court. This one never even got to the 2nd district.

"If, as you wrote, the Bridgeman vs Corel decision "holds no power over anyone except the litigants in that one case," then why is the Government Affairs Counsel for the Association of American Museums concerned about damage to museums' copyrights of photographs of 2-dimensional PD works? "

They are worried because *if* other cases advance that those judges *may* decide to go along with it, not that they *have to* or *will*. I'm sorry you don't appreciate the difference between something that may happen and something that will.

Beyond just that, the article you are quoting from clearly says it "should in no way be considered to constitute formal legal advice."

The part where he mentions "staying away from an appeal" was not saying that he could have appealed the decision without being a litigant, but that they were staying away from helping the litigants appeal.

You can't appeal a court decision unless you were a litigant in the case. Period. I don't know why you keep claiming that other museums could have appealed it if they wanted to, as even a basic understanding of law would make it clear that you are wrong.

"As I stated, the Bridgeman vs Corel decision is a de facto precedent throughout the US."

And repeating it does not make it any more correct. If you knew as much about court cases as you claim to you would know that one case in one court that never went to appeal (let alone to the Supreme Court) is not legally binding throughout the US.

"In the future, no museum is going to sue anyone who reproduces a photograph of a 2-dimensional PD work because the museums have been forcefully told by their lawyers that they will lose in court "

That's absolute sheer wishful thinking on your part. You can't predict what any museum will do. The U.S. lawyers for that organization are just saying that they MAY lose. U.K. lawyers have said very strongly that they doubt any UK judge would ever go along with the decision.

"A claim of copyright that you cannot defend in court is worthless. "

Also technically incorrect, as they can make threats and make people cave. And if they do go to court there is a good chance that they will win, as the case you keep going on about is not legally binding to any judge anywhere. And, heck, unless you have money to defend yourself they can take you to court and drag things out until you run out of money and have to give up.

"Moreover, the country in which a painting or a museum resides is irrelevant to the question under discussion. The only relevant legal factor is the country in which a copyrighted photo is reproduced and distributed without permission. "

This is completely wrong. The very case under discussion was an example of a Canadian company (Corel) reproducing and distributing photos. The reason the case was tried in New York was that the company bringing the suit (Bridgeman) had an office there.

Once again it all comes down to whether you feel lucky or not. If you want to risk it and make reproductions without permission, that's fine. But you simply can't present your amateurish understanding of the issues involved to other people and expect them to believe you.

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