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by Jack Munday, Esq.
In about 42 B.C., Publilius Syrus is reputed to have said, in Latin, "You should hammer your iron when it is glowing hot." The Spanish hero who jousted with windmills, Don Quixote, said much the same thing in Cervantes's novel of that name, when he advised, "Nothing like striking while the iron is hot."
Most of us understand that to be good advice for artist-metalsmiths. Some of us, however, realize that it is also good legal advice. It has to do with our timing when we offer rights to make copies of our works when we sell the original work of art.
Last time we explored the differences between form and substance or functionality of objects created by the artist-blacksmith and the different rights that arise depending upon what the artisan has done. Only those created works that contain a modicum of 'art' may be copyrighted. Once a copyright is obtained, the owner of the copyright has certain exclusive rights that should provide protection of the creation and provide the creator with something with which to exchange for income. So, what are these rights?
The owner of a copyright has the exclusive right to display sculptural works and other solid, physical creations that might be created by an artist-blacksmith. Included in that right is the exclusive right to reproduce the pictorial, graphic or sculptural work in copies, including reproducing the work in or on any kind of article, whether useful or otherwise. An artist, for example, can paint a picture, register the copyright of the painting, and then license the right to reproduce the image on tee-shirts, plates and cups, and other functional objects. The artist-blacksmith can do the same thing.
Samuel Yellin created the gates at the entrance to Northwestern University, in Evanston, Illinois. I wonder if he sold the rights to copy the work, or if he even obtained a copyright. The gates are used often by the school as a symbol unique to Northwestern.
Here in Philadelphia we are witnessing the demise of the famed Wanamaker department stores. In the 'showcase' store in center city, Philadelphia, the 2500 pound bronze eagle has been in residence since 1911. The eagles individually crafted feathers were hammered and bent while hot, and fit into place by hand. The head alone contains 1600 feathers, and 5,000 more on the body. Created by August Gaul of Berlin and manufactured in Frankfort, Germany, the eagle was created for the 1904 Louisiana Purchase Exposition, held in St. Louis.
The Wanamaker eagle, as it is known, has served as a landmark in the city of brotherly love, and has become a trademark logo of Wanamakers. The company undoubtedly has made great and substantial use of the work ever since it took its place. One presumes that the copyright was purchased, for it is clear copyright law that purchasing an object, even a great work of art, does not convey the copyright as well. Remember our analogy that one who buys a book does not obtain the right to copy it.
While most artist-metalsmiths are not fortunate enough to create a work that becomes the symbol of a major retail organization, they are creating works all the time. Remember that the right to copy your original work is not transferred when you sell the work. One advantage of being commissioned to create a work of art for a company or organization is that the work will become prominent. It would be worth while reminding your purchasers of that fact as they intend to use the image of the work in their main business. Then might want to pay more for all the rights. At least you should ask, while the 'iron is hot'.
John S. Munday (Jack) is an intellectual property lawyer who, with Jack Andrews, are partners in SkipJack Press, Inc. which publishes books on the metal arts. They are currently looking for new manuscripts. Their most recent publication will be a volume containing two books by Julius Schramm, the noted German master artist-blacksmith. Francis Whitaker studied with Schramm for two years in 1923 and is responsible for having these books translated from German.
ArtMetal Editor/Curator: Enrique Vega