If Renoir Died in 1919, Why Does U.S. Copyright Still Protect His Work?

 

By Peter Karol

 

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opyright lawyers are often asked whether a very old work remains under copyright in the United States. Until recently, this had been a relatively simple question to answer. If the work was first published before January 1, 1923, its copyright term was not  extended by the Sonny Bono Copyright Term Extension Act, and thus had expired. 

But even this simple rule has its exceptions, as demonstrated by a recent federal appeals court decision,Societe Civile Succession Guino v. Renoir. The 9th Circuit Court of Appeals affirmed an earlier holding that sculptures made by Pierre-Auguste Renoir (yes, that Renoir), created and published between 1913 and 1917, not only remain under copyright in the United States, but will stay protected until the year 2043, some 124 years after Renoir died.

Moreover, because of private agreements among Renoir and his collaborator’s descendants over the years, the legal successors to Renoir’s estate possess valid copyright infringement claims against none other than Jean-Emmanuel Renoir (Renoir’s great-grandson), among others.

This holding is the product of many exceptional facts, including that: (1) the works were created not just by Renoir (d. 1919) but also by a studio assistant, Richard Guino (d. 1973); (2) they were originally published in France, and not the U.S.; (3) they were never affixed with a formal notice of U.S. copyright; and (4) the works were first registered with the U.S. copyright office by Renoir-Guino’s successors in the early 1980s.

Reviewing this remarkable history, the court determined that the works never entered the “public domain” in the United States, publication in France being effectively invisible to the copyright law of this country.

Moreover, what had historically been the kiss of death for international artists – failure to comply with U.S. copyright formalities – actually benefited the artists’ successors in these circumstances, by tolling (that is, postponing) the start of the protection period.

Finally, because the works fall under the protection of the current Copyright Act (and not the one in force in 1917) the copyright in the sculptures lasts for the life of the later-dying collaborator (Guino) plus seventy years. Hence, protection until 2043.

It is almost impossible to abstract from this case any rule of thumb, except, perhaps the following: in copyright law, don’t rely on rules of thumb.

Strange as it might seem to a normal person that a Renoir sculpture could still be under copyright in 2043, the outcome of the Renoir case did not surprise most copyright scholars. Last month’s decision merely affirmed a lower court ruling from 2006, which in turn was rooted in a seminal appellate case from the mid1990s.

Indeed, the copyright scholars Melville and David Nimmer had already commented that the earlier holdings permitted the absurdity that an ancient Greek tragedy created in, say, 500 B.C., could theoretically still be protected under U.S. copyright law if its first U.S. publication occurred between 1978 and 2002. This further twist is brought about by operation of a related section of the copyright statute.

Amazingly, the appeals court in the Renoir case directly acknowledged and even accepted this possibility. But, the court reasoned, “While an ancient work may be protected today under the ruling . . . the term is not limitless . . [but] would be limited to a finite term[.]” As the duration – if not the commencement – of the copyright period is finite and definable, the court went on, the underlying rule of law is constitutional.

To their credit, the courts which ruled on the Renoir sculptures – the appeals court recently, and the lower court in 2006 – both openly questioned whether their decisions made for the best law. Both, however, felt constrained by precedent.

Although conceptually interesting, the Renoir case is not likely to have a large practical impact on copyright practice given the exceptional set of facts required to fall within its reach. It would most likely apply where, as in the case itself, a graying early-modern master collaborated, at the climax of his career, and in another country, with a long-living younger artist.

If you have reason to think that your expatriated grandfather happened to spend some time assisting a famed artist abroad, now might be the right time to ask yourself whatever happened to those artworks.