Pushman v. New York Graphic Society, Inc.

New York Court of Appeals
39 N.E.2d 249, 52 U.S.P.Q. (BNA) 273, 287 N.Y. 302 (1942)

ELI5:

Rule of Law:

An unconditional sale of a work of art transfers the common law copyright and right of reproduction to the purchaser unless the artist expressly reserves those rights at the time of the transfer.

Facts:

Hovsep Pushman, an artist with an international reputation, painted 'When Autumn is Here' in 1930.
Pushman delivered the painting to Grand Central Art Galleries, his selling agent, without explicitly forbidding the sale of reproduction rights or reserving them for himself.
The Gallery exhibited the painting at the University of Illinois and negotiated a sale price of $3,600.
The Gallery sold the painting to the University of Illinois via an absolute and unconditional bill of sale.
Pushman never expressed any intent to withhold reproduction rights during the transaction.
The painting remained in the University's possession for ten years.
In 1940, the University sold the right to make reproductions of the painting to the New York Graphic Society, Inc.
The New York Graphic Society prepared to market reproductions of the work.

Procedural Posture:

Pushman sued the New York Graphic Society and the University of Illinois in the New York Supreme Court, Special Term, seeking an injunction to stop reproduction.
The Special Term (trial court) denied the injunction and dismissed the complaint on the merits.
Pushman appealed to the Appellate Division, First Department.
The Appellate Division affirmed the dismissal of the complaint (with one justice dissenting).
Pushman appealed to the Court of Appeals of New York.

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Issue:

Does an artist's unconditional sale of an uncopyrighted painting transfer the common law right of reproduction to the purchaser if the artist fails to explicitly reserve that right in the bill of sale?

Opinions:

Majority - Desmond, J.

Yes, an unconditional sale of a work of art includes the transfer of reproduction rights unless the artist explicitly states otherwise. The court reasoned that while common law copyright is a distinct right from the physical ownership of the canvas, the presumption in the law is that a straight-out bill of sale conveys the artist's entire property interest. Relying on the precedent of Parton v. Prang, the court held that silence regarding copyright during a sale implies a full transfer of all rights. Because Pushman failed to manifest any intent to hold back the reproduction rights when his agent sold the painting to the University, those rights passed to the University, which was then free to sell them to the defendants. The court declined to read limitations into the transfer that the parties themselves did not include.

Analysis:

This decision established a strict default rule in New York (the 'Pushman presumption') that favored purchasers over creators in the absence of written contracts. By holding that silence equals a transfer of copyright, the court placed the burden entirely on artists to explicitly reserve their rights when selling physical works. This ruling was significant because it meant that for decades, many artists unwittingly lost control over the commercial reproduction of their work simply by selling the original. This common law rule was eventually superseded by statute (legislation in New York and later the federal Copyright Act of 1976), which reversed the presumption so that copyright now remains with the artist unless expressly transferred.

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