Saturday, December 20, 2008

Renoir-Guino: Interminable Foreign Copyrights

A series of sculptures was created and published by Pierre-Auguste Renoir in 1917 in France. Renoir died in 1919. The sculptures were published without a copyright notice. Guino died in 1973. In 1973 (56 years later) Guino (or his estate) obtained a determination in a French court that he was co-author of the sculptures, and was awarded a one-half interest in the sculptures.
In 1984, a company representing the joint interest of certain Renoir family members and the Guino family ("Societe Civile Succession Richard Guino") obtained US copyright registrations based on a claim that the sculptures were unpublished or first published in 1983.
In 2003, Jean-Emmanual Renoir, a great grandson of Renoir, sold "some of the sculptures, or molds or castings thereof" to a gallerist in Scottsdale, Arizona.
The Societe Civile Richard Guino sued Renoir's great-grandson for copyright infringement. Since works published prior to 1923 are all in the public domain, how could this possibly happen?
The Ninth Circuit took a case called "Twin Books" involving publication of the story of Bambi in Germany in 1923 without notice and again in 1926 with notice. The Ninth Circuit made a number of extrapolations from the Twin Books case. I won't go through the reasoning which involves the interplay of the 1909 Copyright Act, the 1976 Copyright Act and the Copyright Restoration Act, but suffice it to say that the Ninth Circuit's rule is that if an ancient Greek vase is discovered tomorrow, its copyright term would be the "finite term of seventy years after the death of the last author [under sections 303(a) and 302(a) and (b)] or December 21, 2047 whichever is later."
The case appears to hold that any foreign publication of a work without copyright notice is to be treated as if the work was not published.
The case is Societe Civile Succession Richard Guino v. Renoir, -- F.3d ---, 2008 WL 5142844 (9th Cir. December 8, 2008). Poor great-grandson Renoir and the gallerist to whom he sold the works also lost Lanham Act claims for false advertising. Rebecca Tushnet's here, and Michael Atkins here. William Patry, who calls the case a "brain-teaser" here. Renoir-Guino photos found here.

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