Page:Yardley v. Houghton Mifflin (2d Cir. 1939).pdf/4

 sent to him in the usual course, and is paid for the photographs and for his services in taking them, the right of copyright is in the sitter or in the person sending the sitter to be photographed, and not in the photographer; but the photographer is entitled to copyright where he solicits the sitter to come to his studio and takes the photographs gratuitously for his own purposes and at his own expense. Lumiere v. Robertson-Cole Distributing Corp., 2 Cir., 280 F. 550, 24 A.L.R. 1317, certiorari denied 259 U.S. 583, 42 S.Ct. 586, 66 L.Ed. 1075; Lumiere v. Pathe Exchange, 2 Cir., 275 F. 428; Press Pub. Co. v. Falk, C.C.S.D.N.Y., 59 F. 324; see also Cory v. Physical Culture Hotel, 2 Cir., 88 F.2d 411, photograph of inanimate object. We think the rule should be the same when a painting is made by an artist. If he is solicited by a patron to execute a commission for pay, the presumption should be indulged that the patron desires to control the publication of copies and that the artist consents that he may, unless by the terms of the contract, express or implicit, the artist has reserved the copyright to himself. Such a presumption must rest on the supposed intention of the parties, and the appellant argues that when the painting is not a portrait and when the patron who commissioned the artist to paint it is not engaged in publication for profit and apparently desired the painting only for decorative purposes, the presumption is not justified. But we think the distinction is too refined to be accepted. It is not unusual for cities or other municipal bodies to publish post card copies or other reproductions of publicly owned works of art. The evidence shows that the painting was one of which the city might well be proud and wish to reproduce, as it represented the first attempt of the Board of Education to beautify the walls of city schools. We believe, therefore, that the general rule is applicable and that the right to copyright should be held to have passed with the painting, unless the plaintiff can prove that the parties intended it to be reserved to the artist. Dielman v. White, C.C.Mass., 102 F. 892.

The terms of the contract between the city and the contractor show that an artist was to be commissioned to paint a mural for pay. For reasons already discussed this contemplated that the city should get the copyright as well as the painting. There is no evidence as to the precise terms of the agreement made by Turner when he accepted the employment. In the absence of such evidence we must infer that whatever agent of the city negotiated with Turner did his duty and obtained for the city all that its contract for the building required; in other words, that Turner’s contract of employment did not reserve the copyright. His subsequent unilateral act in placing on the painting the copyright notice would be ineffective to modify his contract of employment. It was at most an offer to modify it. The acceptance by city officials of the painting bearing the notice would show acceptance of that offer only if the officials observed the notice and had authority to make a contract modifying Turner’s original employment. In both respects the proof is insufficient. As to the former, there is no evidence that the Committee on Buildings, whose approval of the painting was required before the Superintendent of School Buildings should issue his certificate for payment, ever had the inscription called to its attention. If it did come to the Committee’s attention, it is entirely possible that the Committee protested to Turner and got his consent to waive his claim of reservation of copyright. The subsequent conduct of the parties is entirely consistent with such a possibility. Turner, so far as appears, never made any copies. During Turner’s life time some school official or teacher, whose identity is not clearly proven, caused 30,000 postal card reproductions to be made for sale or free distribution to the students at the school; and after Turner’s death, the Board of Education gave permission for publication in the appellee’s histories. It is urged that the evidence is insufficient to sustain the court’s finding that such permission was given. After so long a lapse of years Mr. Webster could not remember definitely to what official he had applied for permission, but the fact that under the published reproduction the appellee printed the inscription “Copyright, Courtesy New York Board of Education,” tends to support an inference that Webster had communicated with the Board and had received its consent. It is urged further that the Board had no legal power to give an effective consent. But whether the consent was effective is immaterial for present purposes. The fact of giving it, regardless of the Board’s authority, shows that the Board did not understand that Turner reserved the copyright. But if the opposite view were taken and acceptance of the painting with the copyright notice upon it