The LETTER EDGED IN BLACK PRESS, INC., an Illinois corporation, Plaintiff, v. PUBLIC BUILDING COMMISSION OF CHICAGO, a municipal corporation, Defendant
No. 69 C 353
UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN
DIVISION
320 F. Supp. 1303;
1970 U.S. Dist. LEXIS 9066; 168 U.S.P.Q. (BNA) 559
December
22, 1970
NAPOLI, District
Judge.
Plaintiff seeks a declaratory judgment invalidating
defendant's copyright to the Pablo Picasso sculpture entitled "The
Chicago Picasso." The defendant is the Public Building
Commission of Chicago (Commission) and the plaintiff is a publisher
who desires to market a copy of the sculpture. Pursuant to Rule
56 of the Federal Rules of Civil Procedure both parties have
moved for summary judgment. Succinctly, plaintiff maintains that
defendant's copyright is invalid because the sculpture is in the
public domain. Defendant asserts that the Chicago Picasso has never
been in the public domain.
STATEMENT OF FACTS
In 1963
certain of the Civic Center architects, representing the Commission,
approached Picasso with a request to design a monumental sculpture
for the plaza in front of the proposed Chicago Civic Center. By May,
1965, Picasso completed the maquette (model) of the sculpture.
William E. Hartmann, the architect, who had been the chief liaison
with Picasso, then had the maquette brought to the basement of the
Art Institute of Chicago, without public notice. The design of the
maquette was subjected to an engineering analysis to determine the
feasibility of constructing the monumental sculpture and three
Chicago charitable foundations undertook to finance the actual
construction by contributing $300,000 toward the total cost of
$351,959.17. An aluminum model of the design with some slight
revisions was prepared as a guide to the construction of the
sculpture, and Picasso approved a picture of this model on August 9,
1966.
The Commission, through its board, had been given a
private viewing of the maquette. Subsequently, the Commission passed
a resolution authorizing the payment of $100,000 to Picasso. This
sum was intended as the purchase price for the entire right, title
and interest in and to the maquette constituting Picasso's design
for the monumental sculpture including the copyright, and copyright
renewals. Hartmann proffered the $100,000 check to Picasso and asked
the artist to sign a document referred to as the "Formal
Acknowledgment and Receipt." Picasso refused to accept the
money or to sign the document. He stated that he wanted to make a
gift of his work. In accordance with Picasso's wish, counsel for the
Commission and William Hartmann prepared the following "Deed of
Gift" which Picasso signed on August 21, 1966:
The monumental sculpture portrayed by the maquette pictured above has been expressly created by me, Pablo Picasso, for installation on the plaza of the Civic Center in the City of Chicago, State of Illinois, United States of America. This sculpture was undertaken by me for the Public Building Commission of Chicago at the request of William E. Hartmann, acting on behalf of the Chicago Civic Center [*1306] architects. I hereby give this work and the right to reproduce it to the Public Building Commission, and I give the maquette to the Art Institute of Chicago, desiring that these gifts shall, through them, belong to the people of Chicago.
In the fall of
1966 the Commission, the public relations department of the City of
Chicago, the Art Institute of Chicago and the U.S. Steel
Corporation, the latter being the prime contractor for the
construction of the sculpture, began a campaign to publicize the
Chicago Picasso. The campaign was directed by Hartmann, with help
from Al Weisman head of the public relations department of the
advertising firm of Foote, Cone and Belding.
As part of the
campaign at least two press showings were conducted. The first was
held on September 20, 1966, when the maquette was placed on public
exhibition at the Art Institute. No copyright notice was affixed to
the maquette. The following notice was, however, posted in the Art
Institute:
"The rights of reproduction are the property of the Public Building Commission of Chicago. 1966. All Rights Reserved."
Press photographers attended the showing at the
invitation of the Commission and the Art Institute and later
published pictures of the maquette and aluminum model in Chicago
newspapers and in magazines of national and international
circulation. In addition the Commission supplied photographs of the
maquette and the uncopyrighted architect's aluminum model to members
of the public who requested them for publication. The second showing
took place in December of 1966 when the U.S. Steel Corporation, with
the knowledge of the Commission, had completed a twelve-foot
six-inch wooden model of the sculpture and invited the press to
photograph the model. There was no copyright notice on the model and
the pictures were published without copyright notice. U.S. Steel
also hired a professional photographer to take pictures of the model
and these pictures were used in the publicity drive.
The
drive was seemingly successful for pictures of the Picasso design
appeared in Business Week Magazine on May 6, 1967, and in Holiday
Magazine in March, 1967. Fortune Magazine published three pages of
color photographs about the Chicago Picasso including pictures of
the U.S. Steel wooden model. The Chicago Sun Times, Midwest magazine
published a cover story on the sculpture with a drawing of the
maquette on the cover of the magazine. And a picture of the maquette
was printed in U.S. Steel News, a house organ with a circulation of
over 300,000. None of the photographs or drawings that were
published in the above named publications bore any copyright notice
whatever.
From June, 1967, through August 13, 1967, the
maquette was displayed at the Tate Gallery in London, England. In
conjunction with the exhibit at the Tate, a catalog was published
wherein a picture of the maquette appeared. Neither on the maquette
itself nor on the photograph in the catalog did copyright notice
appear. The Commission had knowledge of these facts for on July 6,
1967, Hartmann had sent to the Chairman of the Commission the
catalog which was placed in the Commission files.
On August
15, 1967, the monumental sculpture, "The Chicago Picasso"
was dedicated in ceremonies on the Civic Center Plaza. The sculpture
bore the following copyright:
1967 PUBLIC BUILDING COMMISSION
OF CHICAGO ALL RIGHTS RESERVED
At the dedication, Mr.
Hartmann, co-chairman of the event and master of cermonies said:
"* * * Pablo Picasso * * * as you know gave the creation of the sculpture to the people of Chicago and his maquette to the Art Institute of Chicago."
The
Chairman of the Public Building Commission, in his speech of
dedication [*1307] to the approximately 50,000 persons
assembled for the ceremony said:
"It's an occasion we've all been anticipating -- the dedication of this great gift to our city by the world-renowned artist, Pablo Picasso," and
"* * * I dedicate this gift in the name of Chicago and wish it an abiding and happy stay in the City's heart."
In conjunction with
the dedication a commemorative souvenir booklet of the Chicago
Picasso dedication ceremonies was prepared by the Commission. The
booklet which contained drawings and photographs of the maquette and
the aluminum model were distributed to 96 distinguished men and
women from all areas of Chicago life and to honored guests. Neither
the booklet itself, nor any of the photographs shown therein, bore
any copyright notice. Also, on the day of the dedication the United
States Steel public relations office sent out a press release
together with a photo of the monumental sculpture. The photograph
bore no copyright notice.
Subsequent to the dedication, the
Art Institute published its Annual Report which contained an
uncopyrighted picture of the maquette. This publication had a
circulation of 40,000 copies, including museums and libraries. The
Art Institute also continued selling a photograph of the maquette on
a postcard. Between October 1966 and October 1967, 800 copies of
this postcard were sold. In 1967, however, the Commission asked the
Art Institute to stop selling the postcard and the Art Institute
complied with this request.
In October 1967, the Commission
caused to be engraved in the granite base of the sculpture the
following legend:
"CHICAGO PICASSO
THE CREATION OF THE SCULPTURE WAS GIVEN TO THE PEOPLE OF CHICAGO BY THE ARTIST PABLO PICASSO
THE ERECTION OF THE SCULPTURE WAS MADE POSSIBLE THROUGH THE GENEROSITY OF WOODS CHARITABLE FUND, INC.
CHAUNCEY AND MARION DEERING McCORMICK FOUNDATION FIELD FOUNDATION OF ILLINOIS
DEDICATED AUGUST 15, 1967
RICHARD J. DALEY, MAYOR."
In November, 1967, the Commission stated its policy that no
individuals shall be restricted from "full personal enjoyment
of the sculpture, including the right to take photographs and make
paintings, etchings and models of the same for personal,
non-commercial purposes." The Commission has also had a policy
of granting licenses to copy the sculpture for commercial purposes.
The Commission requires payment of a nominal fee and a royalty on
copies sold. Several such licenses have been granted.
Finally,
on January 12, 1968, the Public Building Commission filed its
application with the Register of Copyrights asking a copyright in
the monumental sculpture entitled "The Chicago Picasso."
In due course a certificate of copyright registration was issued to
defendant.
STATEMENT OF APPLICABLE LAW
Defendant
submits that the attaching of notice to the monumental sculpture on
August 4, 1967, and the later registration of the copyright were
acts sufficient to obtain a statutory copyright under 17
U.S.C. § 10 n1 and 17
U.S.C. § 11. n2 This [*1308] attempt to
establish a statutory copyright must fail, however, if the Chicago
Picasso was in the public domain prior to August 4, 1967. Such a
conclusion is inescapable given the statutory admonition of
17
U.S.C. § 8 that "[no] copyright shall subsist in the
original text of any work which is in the public domain * * *"
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n1 Publication of work with notice
Any
person entitled thereto by this title may secure copyright for his
work by publication thereof with the notice of copyright required by
this title; and such notice shall be affixed to each copy thereof
published or offered for sale in the United States by authority of
the copyright proprietor, except in the case of books seeking ad
interim protection under section 22 of this title. July 30, 1947, c.
391, § 1, 61 Stat. 652.
n2 Registration of claim and
issuance of certificate
Such person may obtain
registration of his claim to copyright by complying with the
provisions of this title, including the deposit of copies, and upon
such compliance the Register of Copyrights shall issue to him the
certificates provided for in section 209 of this title. July 30,
1947, c. 391, § 1, 61 Stat. 652.
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To
determine how a work comes to be in the public domain it is
necessary to explore the basis of the copyright protection. The
common law copyright arises upon the creation of any work of art, be
it a first sketch or the finished product. n3 This common law right
protects against unauthorized copying, publishing, vending,
performing, and recording. n4 The common law copyright is terminated
by publication of the work n5 by the proprietor n6 of the copyright.
Upon termination of the common law copyright, the work falls into
the public domain if statutory protection is not obtained by the
giving of the requisite notice. n7
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n3 Gold,
Protection of the Artist and Sculptor Under the Law of Copyrights,
22 U. Pitt. L. Rev. 710 (1961); Nimmer on Copyright, section 11.2,
Matthew Bender Co. (1970).
n4 Nimmer, Ibid, section
111.
n5 Donaldson v. Becket, infra, note 8; Wheaton v.
Peters, infra, note 10; and National Comics Publications v.
Fawcett Publications, infra, note 11.
n6 The
proprietor may be the original creator or one to whom the copyright
has been given or conveyed. Nimmer, supra, note 3, section
120.1; Van
Cleef and Arpels, Inc. v. Schechter, 308 F. Supp. 674 (S.D.N.Y.
1969)
n7 Donaldson v. Becket, infra,
note 8; Wheaton v. Peters, infra, note 10; and National
Comics Publications v. Fawcett Publications, infra, note
11.
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In some of the early English decisions there was
debate as to whether publication did indeed divest its owner of
common law protection. n8 Arguing that divestment should not occur
upon publication, because of the seeming irrationality of such a
rule, Lord Mansfield observed: "'The copy is made common,
because the law does not protect it: and the law can not protect it
because it is made common.'" n9
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n8 Millar v.
Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (1769 KB); contra,
Donaldson v. Becket, 4 Burr. 2408 (1774).
n9 Millar v.
Taylor, ibid, at 2399.
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In the United States,
however, it has been clear, from the date the question first reached
the Supreme Court, that the common law copyright is terminated upon
the first publication. n10 And as Judge Learned Hand noted in
National Comics Publications v. Fawcett Publications, n11 citing
Donaldson v. Becket, n12 "It is of course true that the
publication of a copyrightable 'work' puts that 'work' into the
public domain except so far as it may be protected by copyright.
That has been unquestioned law since 1774."
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n10
Wheaton
v. Peters, 33 U.S. (8 Pet.) 591, 8 L. Ed. 1055 (1834).
n11
National
Comics Publications v. Fawcett Publications, 191 F.2d 594, 598 (2nd
Cir. 1951).
n12 Donaldson v. Becket, supra, note
8.
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One justification for the doctrine, that publication
ipso facto divests an author of common law copyright
protection, can be found in the copyright clause of the United
States Constitution. n13 Protection is granted, but only "for
limited times." The inclusion of this caveat in the
Constitution makes manifest the right of society to ultimately claim
free access to materials which may prove essential to the growth of
the society. The copyright clause, however, does not impinge on the
right of privacy [**13] of a creator. An author who
refrains [*1309] from publication and uses his work for
his own pleasure may enjoy the common law copyright protection in
perpetuity. n14 Once a work is published, however, the Constitution
dictates that the time for which the statutory copyright protection
is accorded starts to run. An author is not allowed to publish a
work and then after a period of time has elapsed choose to invoke
statutory copyright protection. If the statutory protection is not
acquired at the time of publication by appropriate notice, the work
is lost to the public domain. Any other rule would permit avoidance
of the "limited times" provision of the Constitution.
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n13 HN6
"To
promote the Progress of Science and useful Arts, by securing for
limited times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries" U.S. Const. Art. I, sec.
8, cl. 8.
n14 Number, supra, note, 3 section
112.1.
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An exception to this rule is that a
limited publication does not divest the holder of his common law
protection. n15 A good definition of limited publication can be
found in White v. Kimmell n16 wherein the court found that a limited
publication is a publication "which communicates the contents
of a manuscript to a definitely selected group and for a limited
purpose, without the right of diffusion, reproduction, distribution
or sale." For example, if an artist shows a painting to a
selected group of his friends, for the limited purpose of obtaining
their criticism, the publication will be said to be limited and thus
not divestive of the artist's common law copyright.
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n15
American
Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S. Ct. 72, 52 L. Ed.
208 (1907).
n16 White
v. Kimmell, 193 F.2d 744, 746-747 (9th Cir. 1952).
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Applying
these general principles of copyright law to the facts of the case
at bar the court is persuaded that the copyright to the work of art
known as the "Chicago Picasso" is invalid. General
publication occurred without the requisite notice. Accordingly, the
common law protection was lost upon publication and the work was
thrust into the public domain.
While this suit could have
been resolved on any one of several distinct theories * the court
has decided to base its opinion on the proposition that the Chicago
Picasso was placed into the public domain prior to the attachment of
copyright notice on the monumental sculpture. Accordingly, only
cursory reference will be paid to the other issues presented in this
action. Even limiting the opinion in this fashion, however, multible
and rather sophisticated arguments of the defendant must be met in
order to sustain the court's opinion.
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* The court
has found it unnecessary to deal with the following issues: 1)
Whether a monumental sculpture of the type at issue can be
copyrighted. See Carns,
et al. v. Keefe Bros., 242 F. 745 (D.C. Mont. 1917); 2) Whether
the sculpture was dedicated to the public and thus incapable of
being copyrighted; 3) Whether a valid copyright can be maintained
where the public is totally free to make copies, albeit for
non-commercial use; and 4) Whether uncopyrighted copies of the
sculpture published after the dedication caused the sculpture to be
placed in the public domain.
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DEFENDANT'S CLAIM
THAT THE MODELS DID NOT NEED COPYRIGHT NOTICE
The defendant's
basic contention is that the work of art is the properly copyrighted
monumental sculpture not the models. In support of this thesis
defendant correctly points out that what was always envisioned by
the Civic Center architects and Picasso was a monumental sculpture
for the Civic Center Plaza. There can only be one copyright in one
work of art it is asserted, n17 and that work allegedly is the
sculpture in the Civic Center Plaza; not the various models used in
its development. It is therefore concluded that copyright notice on
the models was unnecessary before publication of the monumental
sculpture.
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n17 Adventures in Good
Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809 (7th Cir.
1942).
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The court takes a different view of the facts.
When Picasso signed the deed of gift on August 21, 1966, there
existed but a single copyright. Picasso [*1310] had a
common law copyright in the maquette. He gave the maquette itself to
the Art Institute and the right to reproduce it to the defendant.
The monumental sculpture did not exist at this point in time and
accordingly there could be no copyright in the monumental sculpture,
either common law or statutory. It is settled that a copyright can
exist only in a perceptible, tangible work. n18 It can not exist in
a vision. When Picasso made his deed of gift the monumental
sculpture was undeniably but a vision and thus not subject to
copyright protection.
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n18 Baker
v. Selden, 101 U.S. 99, 25 L. Ed. 841 (1879); Nimmer, supra,
note 3, section 8.2; Katz, Copyright Protection of Architectural
Plans, Drawings, and Designs, 19 Law and Contemp. Prob., 224, 232
(1954).
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The maquette, however, was an original, tangible
work of art which would have qualified for statutory copyright
protection under 17
U.S.C. § 5(g). n19 The court finds that when the maquette
was published without statutory notice Picasso's work was forever
lost to the public domain. When the monumental sculpture was finally
completed it could not be copyrighted for it was a mere copy, albeit
on a grand scale, of the maquette, a work already in the public
domain.
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n19 Classification of works for
registration
The application for registration shall
specify to which of the following classes the work in which
copyright is claimed belongs: * * * (g) Works of art; models or
designs for works of art.
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DEFENDANT'S CLAIM THAT
DISPLAY OF THE MAQUETTE DID NOT CONSTITUTE GENERAL
PUBLICATION
Three arguments have been submitted to the effect
that display of the maquette did not constitute general publication.
First, defendant urges that display of the maquette at the Art
Institute was a "limited" publication and thus did not
place the Chicago Picasso in the public domain. In support of this
position the defendant's prime authority is American Tobacco Co. v.
Werckmeister. n20 In the American Tobacco case an English artist
painted a picture depicting a company of gentlemen with filled
glasses, singing in chorus. The artist transferred the copyright in
the picture to the Berlin Photographic Company, which company made
copies of the painting bearing appropriate copyright notice.
Immediately subsequent to transferring the copyright the artist, who
retained ownership of the painting, placed the picture on exhibit at
the Royal Academy. The picture as it hung in the gallery bore no
notice of copyright. Several years later the Berlin Photographic
Company brought an action claiming that the American Tobacco Company
had infringed upon its copyright to the painting. As one of its
defenses the American Tobacco Company argued that because the
painting had been displayed in a public gallery without copyright
notice it had been lost to the public domain and accordingly, the
copyright was invalid. The court rejected this argument finding that
the display in the gallery amounted to a limited publication and
thus did not operate to divest the holder of the copyright of its
rights. The basis for this decision was the finding that absolutely
no copies were permitted to be made by anyone viewing the picture at
the gallery. In fact, it was noted that guards were stationed in the
gallery to rigidly enforce the rule of the Royal Academy that no
copying take place. The court properly decided that the rational
basis for the notice requirement would not be transgressed by
showing a picture bearing no notice where that picture could not be
copied. In closing dicta the Court in American Tobacco noted: "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
[*1311] or notice of reservation of rights which he
takes no measure to protect." n21
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n20 American
Tobacco Co. v. Werckmeister, supra, note 15.
n21
American
Tobacco Co. v. Werckmeister, supra, note 15, 207
U.S. at 300, 28 S. Ct. at 77.
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It is this court's
finding that the case at bar more closely resembles the situation
postulated in the aforementioned dicta than it does the actual facts
of the American Tobacco case. In the case at bar there were no
restrictions on copying and no guards preventing copying. Rather
every citizen was free to copy the maquette for his own pleasure and
camera permits were available to members of the public. n22 At its
first public display the press was freely allowed to photograph the
maquette and publish these photographs in major newspapers and
magazines. Further, officials at this first public showing of the
maquette made uncopyrighted pictures of the maquette available upon
request. Were this activity classified as limited publication, there
would no longer be any meaningful distinction between limited and
general publication. The activity in question does not comport with
any definition of limited publication. Rather, the display of the
maquette constituted general publication. n23
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n22 The
Art Institute camera regulations do, however, require that
permission be obtained in order to use photographic copies of works
of art commercially.
n23 Morton
v. Raphael, 334 Ill. App. 399, 79 N.E. 2d 522 (1948).
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Defendant's second assertion is that the display of the
maquette was inconsequential since an unpublished work, model
thereof, or copy thereof does not require a copyright notice. n24
The court has no quarrel with this statement of law. The problem
with this argument, however, is that it begs the question of whether
or not there was general publication. Since there was general
publication of the maquette, notice was required.
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n24
Nimmer, supra, note 3, Section 89.1.
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Finally,
defendant argues that the Art Institute did not hold the copyright
to the maquette and therefore could not have placed notice on the
maquette. The answer to this assertion is that the Commission, the
alleged holder of the copyright, was required to insure that proper
notice was placed on the maquette. The Commission was able to place
improper notice at the showing, i.e., notice in the room, but it did
not comply with the statutory requirement that notice be placed on
the work itself in order to be effective. n25
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n25 17
U.S.C. § 10 supra, note 1.
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DEFENDANT'S
CLAIM THAT UNCOPYRIGHTED PICTURES COULD BE USED IN THE PUBLICITY
CAMPAIGN
The defendant's major defense to the use of
uncopyrighted pictures of the models in the publicity drive is what
appears to be an inverse applicacation of the doctrine of "fair
use". Generally it can be stated that certain acts of copying
are defensible as "fair use". n26 The doctrine of fair
use, however, was meant to be used and has only been used, as a
defense in infringement actions. n27 The defendant can not cite a
single authority to support its unique claim that the doctrine can
be asserted to excuse a failure to put copyright notice on copies of
a work of art intended for distribution to the press. The court
after diligent research has also failed to find any support for the
defendant's position. It seems appropriate to ask why defendant's
desire for wide and favorable distribution of copies of the maquette
and the other models could not have been fulfilled by distribution
of pictures which had copyright notice printed on them?
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n26
Nimmer, supra, note 3, section 145; Copyright Fair Use-Case
Law and Legislation, 1969 Duke L.J. 74.
n27 Nimmer, supra,
note 3, section 149.
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Defendant has an
additional defense to the uncopyrighted printing of pictures of the
maquette, the wooden model, and the aluminum model. It is [*1312]
contended that the copies of the work of art that appeared in
various newspapers and mazagines without notice did not amount to
divesting publication because these pictures were protected under
the copyright secured by the media in their own publication. It is
settled law that if a work is published in the press, without a
separate notice in the name of the holder of the copyright of the
work in question, that work has been published without valid notice.
n28 Defendant contends that the above statement of law has been
overruled by Goodis v. United Artists Television Inc. n29 and that
the Goodis case supports its position that the press
copyright protects the interests of the work's owner. The issue in
the Goodis case was "whether a magazine publisher who
acquires only the right to serialize a novel before it is published
in book form has such an interest in the work that notice of
copyright in the publisher's name will protect the copyright of the
author of the novel." n30 The court in finding that the
publisher's copyright did protect the author, based its opinion on
the fact that the magazine had purchased a property interest in the
novel, i.e., the right of first publication. Thus, the court found
that the publisher's notice was sufficient since the magazine had
obtained proprietorship of a portion of the copyright to the novel.
The basic issue that the Goodis court decided was whether the
doctrine of indivisibility of copyright was applicable to the
situation presented in that case.
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n28 Nimmer, supra,
note 3, section 119.32; McDaniel
v. Friedman, 98 F.2d 745 (7th Cir. 1938); Kaplan
v. Fox Film Corporation, 19 F. Supp. 780 (S.D.N.Y. 1937).
n29
Goodis
v. United Artists Television, Inc., 425 F.2d 397 (2nd Cir.
1970).
n30 Ibid, p. 398.
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The case at
bar is distinguishable from the Goodis decision for in the
instant case the newspapers and magazines that published the
pictures of the work of art did not have as the Goodis court
said, "such an interest in the work that notice of copyright in
the publisher's name will protect the copyright * * *." n31 The
publishers in the case at bar had no interest whatever in the
pictures of the work that they published. Accordingly, the court
finds that the copyrights of the publishers in their own
publications do not serve to rescue the defendant's copyright in
this case.
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n31 Ibid.
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DEFENDANT'S
CLAIM THAT PUBLICATION OF PICTURES OF THE MODELS CONSTITUTED
INFRINGEMENT
The last major defense that the defendant
advances in an attempt to excuse the uncopyrighted publication of
the work of art is that the publications constituted unauthorized
infringement, and therefore they did not place the work in the
public domain. n32 In a letter to Hartmann, before the deed of gift
was signed, which letter the defendant characterizes as,
"instructions to architects", the following directions
were set out:
"In order for the PUBLIC BUILDING COMMISSION to preserve all rights in and to this work of art, it is essential that every publication of the work, whether of the maquette, photographs of the maquette, or the ultimate monumental sculpture, bear the following notice:
" 1966 Public Building Commission of Chicago All Rights Reserved
"The notice must appear legibly on an exposed surface of the sculpture. Since notice is the essence of protection, we suggest consultation between us before publication of the work in any form.
"Would you, or someone at your office, see that the photographs, drawings, [*1313] and all other reproductions of this work of art are marked with the foregoing copyright notice."
Also, in its
contract with the builder of the sculpture the defendant included
provisions requiring that notice be placed on the sculpture and on
all reproductions and drawings of the design.
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n32
Nimmer, supra, note 3, section 82.
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Given these
instructions the defendant argues that many of the instances of
publication were actually acts of infringement because they were
unauthorized and accordingly did not defeat defendant's copyright.
The court has found no evidence for the period before notice was
attached to the monumental sculpture on August 4, 1967, that the
Commission intended to have its orders carried out. Rather, the
great bulk of the evidence before the Court, shows that the
Commission itself disregarded its own instructions. That instead of
objecting to uncopyrighted publications, the Commission passively
and in some cases actively engaged in the distribution of
uncopyrighted pictures promoting the Chicago Picasso. The court on
the facts before it could not find that any of the publications here
in question constituted unauthorized infringing publications.
Accordingly, this last defense submitted by the defendant must be
rejected.
An analysis of the legal issues presented in this
action compels the conclusion that the copyright to the Chicago
Picasso is invalid due to the fact that the sculpture has entered
the public domain. This decision comports with a strict adherence to
copyright law and is also in consonance with the policy of enriching
society which underlies our copyright system. The broadest and most
uninhibited reproduction and copying of a provocative piece of
public sculpture can only have the end result of benefiting
society.
For all of the foregoing reasons this court hereby
enters summary judgment in favor of the plaintiff and against the
defendant.