14 December 2004

Sadly Amusing

A sadly amusing item in the NYT this morning reports the indictment of an art gallery owner for participating in fraudulent copying of paintings. This dovetails all too nicely with the authorship of photographs problem:

  • Who is the "author" of the forgeries? Sure, they're intended to copy, as exactly as possible, the original paintings, which argues that the "master" (say, Gaugain) is the "author." Unlike a photograph, however, copying a painting requires substantial creative effort by the copyist, beyond the mere spattering of color onto a canvas. In fact, even selecting and weathering the canvas may be enough for creativity. So, then, is the copyist the "author" of the copy?
  • Or, instead, since the paintings were done on commission by the gallery, does the work-for-hire doctrine mean that the gallery is the "author"? If so, doesn't that mean that the Copyright Act is ratifying an illegal transaction, presuming that making the copies is itself an unlawful act? If making the copies is not an unlawful act, though, haven't we just contradicted whatever determination of authorship we made above?

Hmm. Sounds like a good exam question.