Frederick Ferdinand Schafer Painting Catalog

Copyright notice

Discussion

Background. As far as is known, all of Schafer's paintings were executed by 1911. Under the Copyright Acts of 1870 and 1909, at the moment each painting was first offered for sale to the general public it became, in copyright jargon, "published" and, since none of his paintings are known to have been registered or carry a copyright notice, at that moment they entered the public domain. The only exceptions to this general pattern would be (1) paintings that Schafer executed after 1923 and (2) pre-1923 paintings that were in the artist's estate at his death in 1927, remained in the hands of the artist's heirs without being offered for sale until 1978, and then were offered for sale before 2002. Under retroactive revisions added to the Copyright Act (Title 17, U.S. Code) starting in 1976, paintings that fit either exception could still be under copyright. However, no paintings are known to fit either exception. (If you know of an exception, please contact the author!)

Moral Rights (Le Droit Moral). The 1979 California Art Preservation Act (California civil code section 987) creates rights for artists that go well beyond copyright law. However, the rights that act creates specifically expire 50 years after the death of the artist. Since Schafer died in 1927, these rights do not apply to his paintings.

The 1982 New York Arts and Cultural Affairs Law (Title C, article 14) retroactively creates additional rights, including disconnection of the sale of a work from granting of copyright in that work; but the act explicitly does not apply to works that are in the public domain, so this law is not applicable to Schafer's paintings, even those that may have been painted in the state of New York.

Finally, the federal Visual Artist's Rights Act of 1990, which added section 106A to the U.S. Copyright Act of 1976, creates additional rights for artists. But the rights created apply only to works created after June 1, 1991, and in addition they expire with the death of the artist, so they, too, do not apply to Schafer's paintings.

Painting Copyright. My (layman's) conclusion from that analysis is that all known Schafer paintings are in the public domain, and there are no copyright or droit moral impediments to making and distributing reproductions of the paintings.

Photograph Copyright. Photographs can also be subject to copyright by the photographer or the person who hired the photographer, and for most of the painting photographs appearing in this catalog, the 1976 Copyright act would apply, thus requiring permission of the copyright owner for publication. However, to qualify for copyright protection, a photograph must have elements of originality. A photograph that is intended to reproduce a painting as accurately as technically possible is arguably just a copy that lacks the originality necessary to qualify for copyright protection. Following this argument, a United States District Court in the case Bridgeman Art Library, Ltd. v Corel Corp, 36F. Supp. 2d 191 (S.D.N.Y. 1999), denied Bridgeman's claim of copyright in its photographs of public domain paintings.

On this basis, most of the photographs that were scanned to produce the images in this catalog are assumed to be free of copyright. The few exceptions are clearly identified with an adjacent copyright notice.

Permissions. In order to obtain access to photograph a painting, a photographer may have made a formal or informal agreement with the owner of the painting, and may have other concerns about the use of his or her work. For this reason, to maintain continued access and availability of photographs, it is advisable always to obtain consent of the photographer before reusing an image from this catalog, especially if the use has any commercial aspect.