Copyright Indemnification

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Copyright Indemnification

Many times printers receive art that was previously produced by another printer. The general thought is that the artwork belongs to the owner of the company that hired the first printer to print the items. However, there are legal precedents, dating back to over 100 years ago that hold that the owner of the copyright is the creator of the art.

The owner of a traveling circus called the “Great Wallace Show” hired the Courier Lithographing Company to design and produce several lithographs as advertising posters for their shows. The posters featured images from the circus, such as ballet dancers and acrobats.

Wallace eventually had to reorder more posters, and rather than return to Courier, he placed an order with Donaldson Lithographing Company to produce copies of the three of the advertisements that had been designed and printed by Courier.

George Bleistein of Courier Lithographing Company sued Donaldson Lithographing Company (Bleistein v. Donaldson Lithographing Company, 188 U.S. 239 1903), over copyright infringement. The case eventually went to the United States Supreme Court.

Attorneys for Donaldson objected in stating that the posters were merely advertisements, and as such were not eligible for copyright protection either under the Constitution of the United States or under the Copyright Act of 1870. The United States Court of Appeals for the Sixth Circuit held that the posters were not amenable to copyright protection.

Courier did not agree with this assessment and appealed the decision.

The case went to the United States Supreme Court where Justice Oliver Wendell Holmes, Jr. found it was irrelevant that the posters were for advertising. Justice Holmes explained his ruling in the language that has become a standard in copyright case law.

“It would be a dangerous undertaking for persons trained only to the law to constitute themselves, final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Édouard Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. If they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt.”

Thus, the United States Supreme Court ruled in favor of Courier Lithographing Company, and Donaldson Lithographing Company was held liable for damages.

This ruling led printers to adopt a Copyright Indemnification Form, as they would have no way of knowing in foresight if the art was the property of the company bringing it to them for reproduction or the property of an unknown third party. This form is now considered a Standard Operating Procedure for reproducing every job brought into the shop for duplication.

Never accept art brought into your shop for reproduction without the proper legal paperwork that will protect you from unknown circumstances.

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