Discussion:
I am in Philadelphia. In the early and mid 70's (before 1978), the Topps Chewing Gum company published a series of trading cards called Wacky Packages. They made about 500, and about 30 more were painted but never published. Over time the art for these unpublished ones ended up in the hands of collectors. My question is, if Topps comissioned a piece of art, never published it, and sold it, what happened to the copyright? Were these never copyrighted because they were never published (remember this is pre-1978). Did Topps maintain the copyright by default? Or could the person who obtained the art obtain the copyright without any particular agreement from Topps? I ask this because Topps has made clear they don't care about the copyright on those pieces, but some of the new owners are claiming they now own the copyright because they were never publshed. Does this hold water? And if so, does the fact that they were pre-1978 make any difference? Thanks in advance for any information anybody can provide!
Answer:
if Topps comissioned a piece of art, never published it, and sold it, what happened to the copyright? If Topps had an agreement with the artist to transfer the copyright to Topps, then Topps, or whoever currently owns Topps' assets, would hold the copyright. Otherwise, the artist or his or her estate would hold the copyright. But probably Topps has the copyright.
Were these never copyrighted because they were never published (remember this is pre-1978). No, they are copyrighted. All sorts of things happened with nonpublished works when the copyright act of 1976 was finally enacted -- one of the things was to provide retroactive protection to unpublished works, and to give them a specific duration which depends on a few different facts -- but suffice to say, just because a work is unpublished doesn't mean that a copyright hasn't attached, even for a pre-1978 work. No unpublished work is going to have its copyright expire until at least 2047, so don't hold your breath...
Did Topps maintain the copyright by default? See above. It wouldn't be by default, though -- they probably had a contract.
Or could the person who obtained the art obtain the copyright without any particular agreement from Topps? No. Purchase of a "creative work" is seperate from purchasing the copyright to that same creative work, even if the work is a unique piece.
EDIT: For example, when you go down to Barnes & Noble and buy a copy of, say, the Da Vinci Code, you clearly only buy a copy of the work -- you don't have any "rights" to the work in general. You can read your copy, then sell it or give it away, but you don't acquire the more general right to reproduce the work, or create a derivative work, etc.
Along the same vein, if you buy, for example, a painting from a modern artist, like maybe a dolphin painting by Wyland, even though it may be an original and unique work, and even though the artist may have no plans to reproduce the work or create lithographs of the work, buying the painting does not transfer to YOU the right to then go and create lithos of the painting -- that right remains vested in the artist until (and if) he or she decides to transfer the rights. Ownership of the "object" is not equivalent to ownership of the "rights." Hope that makes sense.
I ask this because Topps has made clear they don't care about the copyright on those pieces, but some of the new owners are claiming they now own the copyright because they were never publshed. Does this hold water? No. The copyright in a creative work ALWAYS vests in the creator, period, with two exceptions -- works done as "works for hire" (works done by employees of a company) have their copyrights vest in the company itself, and works done for the U.S. government are not covered by copyright at all, they go immediately into the public domain.
What that means is the only way someone can obtain the copyright on a work they themselves did not create is to somehow have the copyright transferred to them by the copyright holder. As I noted above, it's almost certain that the artists who were comissioned to paint these pieces for Topps contractual transferred their copyright rights to Topps as part of their agreement. Copyrights can be sold, given away, inherited, whatever -- but cannot, under any circumstance, be "re-vested" or "re-acquired" by someone else.
In fact, if a work, for whatever reason, moves into the public domain, the copyright is gone forever -- even the original creator cannot "re-acquire" or "restart" his rights -- once they are gone, they are gone.
So anyone claiming to have acquired the rights to a work are full of it, unless they can show a chain of title to the copyrights back to the original copyright holder.
And if so, does the fact that they were pre-1978 make any difference? No. The 1978 date really isn't as important as you might think. Actually, the government began drafting the "1976" copyright act in 1963 -- once they started drafting the act, everything went "on hold" until the act was actually enacted and effective on January 1, 1978. The effect of this, for example, would be a work that was set to have its copyright expire on Dec. 31, 1963 would NOT be allowed to expire, but instead would be in a holding pattern from 1963 until 1978, when the new laws took effect -- and then it would get the benefit of the new laws anyway. So the practical effect is that anything "created" after 1935 (because of the 28-year terms under the 1909 act, 1963 - 20 years = 1935) is effectively governed by the 1976 statute, assuming it didn't go into the public domain, etc.
Unless those art owners can prove that they own BOTH the artwork AND the copyright, tell 'em to take a hike. You could check at to see if any copyrights have been registered for those works, but if they were unpublished it is unlikely that the copyrights have been reigstered.