In Germany and other countries that recognize a life+70 (or less) term, Klee's works would be in the public domain. I don't know if the laws in countries that have a longer term (Mexico, etc.) are retroactive or if they follow the rule of the shorter term (which would make German status apply).
But Jessica is very astute to recognize that the publication status of the work might affect its copyright status in the U.S. Here are some possibilities: 1) If the work was first published with the authority of the copyright owner in 1931, and the work was included in the book under the authority of the copyright owner (so that is a true publication for copyright purposes), then it is possible the copyright was restored by 17 USC 104A. You then look to see if it was protected by copyright on 1 Jan. 1996. Since Klee died in 1940, and Germany had a life +70 term in 1996, his works would have been protected. That means copyright in the work was restored and would last for the normal US term in 1931, i.e., 95 years, or until 1 Jan. 2027 (95 years after publication date). 2) But publication could happen in ways other than through reproduction, as Jessica astutely notes. I don't think that you would need to consider what constitutes publication in Germany, but only in the U.S. If it was, as Jessica suggests, "offered for sale by a gallery, dealer, or public auction," or if it was displayed without restrictions on the ability of the public to make reproductions of the work, that could constitute publication under U.S. law. If it occurred in 1924, then the work would enter the public domain on 1 Jan. 2020. Wikimedia Commons has a good discussion of this at https://commons.wikimedia.org/wiki/Category:Paul_Klee. It concludes that: It can probably be assumed that works by Klee published prior to 1923 are free both in the U.S., in Switzerland and in Germany as in the rest of the EU, as well as works first published in Switzerland after 1933 (because, as Swiss works, they lost their copyright in the country of origin in 1991 and were thus not protected on the URAA date of January 1, 1996). Klee works published from 1923 to 1933 may not be in the public domain in the U.S. Of course, all this is likely academic. The real question is whether the Klee estate or ARS on its behalf would be likely to bring an action based upon presumed publication and subsequent restoration of copyright. It would be a stretch: as Deborah Gerhardt documented in her paper, "Copyright Publication: An Empirical Study," the record of what courts considered to be publication is very mixed. I suspect that ARS might not want to risk bringing a suit that would test whether publication had occurred and copyright had been restored. That may be why reproductions of Klee's works are common on the Internet. Furthermore, it may be that ARS is asserting control over Klee's non-copyright rights, such as trademark or rights of publicity. I know of at least one instance where VAGA suggested that it had copyright in an artist's work when it actually owned the rights of publicity for the model in the work. But whether you want to proceed is a legal and risk assessment decision that you would have to make after consulting with the appropriate authorities. Peter B. Hirtle Alumni Fellow, Berkman Klein Center for Internet & Society, Harvard University peter.hir...@cornell.edu Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums: http://hdl.handle.net/1813/14142 -----Original Message----- From: mcn-l <mcn-l-boun...@mcn.edu> On Behalf Of Matt Morgan Sent: Wednesday, May 29, 2019 10:11 AM To: mcn-l@mcn.edu Subject: Re: [MCN-L] [IP SIG:] International copyright, publication, and U.S. public domain Paul Klee's works are in the public domain owing to the death+70 rule. See this earlier post to MCN-L celebrating that glorious release: https://www.mail-archive.com/mcn-l@mcn.edu/msg04126.html Best, Matt -- Matt Morgan m...@concretecomputing.com On Wed, May 29, 2019, at 10:00 AM, Jessica Herczeg-Konecny wrote: > Hi everyone, > > I have a question about international copyright. I have been scouring > the R&R Handbook and reached out to Anne Young. Anne provided me with > a lot of helpful information and also encouraged me to post to the > listserv (thank you so much for everything, Anne!) > > The Detroit Institute of Arts has a 1924 work by Paul Klee (Swiss, > died > 79 years ago) in our collection. I have a strictly commercial use for > the image (definitely not "fair use"). > > 1. Do I even bother trying to figure out if our work is in the > public domain since Klee is an ARS artist? > 2. I have found an image of the work in a book published in Germany > in 1931 (there is a copyright notice at the front of the book). I can > show a good-faith effort for research, and I think this image is most > likely the first time the work was published. I should look at German > copyright law, yes? Does this affect copyright in the U.S.? Or should > I be looking to see when the image was first published in the U.S.? > 3. I should also be looking for "the year the work was sold or > offered for sale by a gallery, dealer, or public auction," yes? And if > this is overseas (which it is in this case), I should look at Germany > copyright law, yes? Does this affect copyright the U.S.? > > We do not have a copyright attorney on staff. I am trying to put > together a "Copyright Project" here at the DIA and so just trying to > get a sense of what this is going to entail. > > Thank you (and feel free to contact me directly). > > Best, > Jessica > > Jessica Herczeg-Konecny > Digital Asset Manager > Detroit Institute of Arts > 5200 Woodward Avenue │ Detroit, MI 48202 Tel (313) 833-1391 │ > jhkone...@dia.org<mailto:jhkone...@dia.org> > > _______________________________________________ > You are currently subscribed to mcn-l, the listserv of the Museum > Computer Network (http://www.mcn.edu) > > To post to this list, send messages to: mcn-l@mcn.edu > > To unsubscribe or change mcn-l delivery options visit: > http://mcn.edu/mailman/listinfo/mcn-l > > The MCN-L archives can be found at: > http://www.mail-archive.com/mcn-l@mcn.edu/ > _______________________________________________ You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) To post to this list, send messages to: mcn-l@mcn.edu To unsubscribe or change mcn-l delivery options visit: http://mcn.edu/mailman/listinfo/mcn-l The MCN-L archives can be found at: http://www.mail-archive.com/mcn-l@mcn.edu/ _______________________________________________ You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) To post to this list, send messages to: mcn-l@mcn.edu To unsubscribe or change mcn-l delivery options visit: http://mcn.edu/mailman/listinfo/mcn-l The MCN-L archives can be found at: http://www.mail-archive.com/mcn-l@mcn.edu/
