Pushman v. New York Graphic Society
Encyclopedia
Pushman v. New York Graphic Society, 287 N.Y. 302 (1942), was a case decided by the New York Court of Appeals
that held that, while the copyright
in a work of authorship is distinct from the tangible embodiment of the work, if the only tangible embodiment of the work is transferred the copyright is also presumptively transferred.
was an artist that finished a work entitled When Autumn is Here in 1930. That same year, Pushman gave the painting to Grand Central Art Galleries to arrange a sale of the work. Upon giving the painting to Grand Central Art Galleries, Pushman did not negotiate any reservation reproduction rights. Grand Central Art Galleries sold the painting to the University of Illinois for $3,600. The painting remained with the University until it sold reproduction rights to the defendant, New York Graphic Society. Pushman sued for an injunction
against reproduction of the painting. The defendant moved to dismiss the complaint, and the motion was granted by the trial court and affirmed by the New York Supreme Court, Appellate Division
.
Pushman was abrogated by § 202 of the Copyright Act of 1976
, which establishes that the transfer of a tangible embodiment of a copyrighted work does not of itself transfer the copyright.
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
that held that, while the copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
in a work of authorship is distinct from the tangible embodiment of the work, if the only tangible embodiment of the work is transferred the copyright is also presumptively transferred.
Factual background
The plaintiff Hovsep PushmanHovsep Pushman
Hovsep Pushman was an American artist of Armenian background. He was known for his contemplative still lifes and sensitive portraits of women, often in exotic dress...
was an artist that finished a work entitled When Autumn is Here in 1930. That same year, Pushman gave the painting to Grand Central Art Galleries to arrange a sale of the work. Upon giving the painting to Grand Central Art Galleries, Pushman did not negotiate any reservation reproduction rights. Grand Central Art Galleries sold the painting to the University of Illinois for $3,600. The painting remained with the University until it sold reproduction rights to the defendant, New York Graphic Society. Pushman sued for an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
against reproduction of the painting. The defendant moved to dismiss the complaint, and the motion was granted by the trial court and affirmed by the New York Supreme Court, Appellate Division
New York Supreme Court, Appellate Division
The Supreme Court of the State of New York, Appellate Division is the intermediate appellate court in New York State. The Appellate Division is composed of four departments .*The First Department covers the Bronx The Supreme Court of the State of New York, Appellate Division is the intermediate...
.
Decision
The court first recognized that the copyright in a work exists separately from the tangible embodiment of the work. But on the authority of the case Parton v. Prang, the court held that to reserve the copyright when the sole tangible embodiment of the work is transferred, the author must make an express reservation at the time of the transfer. The court held that Pushman's sale was unconditional because he did not expressly reserve any rights at the time of the transfer.Impact
The holding in Pushman created what was subsequently termed the Pushman presumption, which required an author to expressly reserve rights when transferring the chattel that embodied a work or risk transferring the rights as well. The holding in Pushman was criticized and subject to various statutory and judicial limitations.Pushman was abrogated by § 202 of the Copyright Act of 1976
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
, which establishes that the transfer of a tangible embodiment of a copyrighted work does not of itself transfer the copyright.