Page 3 (not 6) of today's New York Post has a story about a copyright infringement suit filed by sculptor Arturo DiModica against North Fork Bank of Melville Long Island, Wal-Mart, and seven other companies. DiModica is not a household name, but one of his works is very well-known: the famous 16-foot long "Charging Bull" that was originally installed at the entrance to the New York Stock Exchange, but which now sits in Bowling Green Park, and which has come to symbolize Wall Street.
DiModica created the work on his own in 1989 but described it as a "Christmas gift to the people of New York." By gift, presumably he meant the physical object since he receives licensing fees for reproductions of the work in advertising and for cameos in movies, and has a registration for it. The registration was obtained on March 9, 1998, as an unpublished work, #VAu 422-325. He claims Wal-Mart is selling pictures without his permission and that North Fork has used it in an ad campaign. Reproductions of it have been ubiquitous.
Just so I'm clear ... taking a photograph or painting a picture of a sculpture *is* a prima facie infringement of the derivative works right, correct? At least in the general case?
ReplyDeleteIn trademark law, when a name has become a part of the English language it becomes generic and is no longer subject to protection. Is there, or should there be, a similar doctrine in copyright law, so that creators can lose something that has essentially become a part of our shared culture? This bull is a good example in that it has come to be synonymous with Wall Street. I'm also thinking about Martin Luther King's "I Have Dream" speech, for which King's estate still claims the right to royalties but is an essential part of our national heritage.
ReplyDeleteI love the fact that the linked-to new article has a photo of the bull right there, and I'm sure the sculptor didn't get any money for that picture.
ReplyDeleteYes, I know that picture's there in the name of fair use. But I also know the newspaper's "making money off the sculptor's work."
Max:
ReplyDeleteI love the fair use angle of the link (including mine too). On the question of a derivative work via the photo, by view is that a photo of an object is a reproduction, not a derivative work; the photo merely depicts but doesn't change the object photographed.