Commons:Deletion requests/Files in Category:Paintings by Edward Hopper

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Files in Category:Paintings by Edward Hopper[edit]

Edward Hopper died in 1967. Undelete in 2038.

— Racconish ^☎ 17:39, 18 March 2018 (UTC)Reply[reply]

- I don't understand. Even if an artist publishes his work in 1930, it doesn't enter into the public domain until 70 years after his death? —grolltech^(talk) 23:07, 18 March 2018 (UTC)Reply[reply]

- - Many images are from 1922 or earlier thus fall under pre-1923 US law and are PD, those published 1923 or later need to be looked at regarding possible copyright registration/renewal. All should be checked for proper license --Denniss (talk) 00:16, 19 March 2018 (UTC)Reply[reply]

Comment The threshold of 1923 does not apply to production or exhibition but to publication. A painting does not merely have to be produced before 1923 but also published before 1923. The criterion of exhibition is also unsufficient, as clarified by the Copyright Office: "A public display does not in itself constitute publication. A work of art that exists in only one copy, such as a painting [...] is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, such as through an art dealer, gallery, or auction house." [1] Hopper did publish some works before 1923 : commercial art, posters, maybe etchings. But we are discussing paintings here and he started to become notable for his paintings only in 1923, when six of his watercolors, painted in Gloucester in 1923, were exhibited at the Brooklyn Museum's International Watercolor Exhibition (Nov-Dec 1923) [2] [3]. I therefore find it unlikely any of his paintings would have been published before that year. — Racconish ^☎ 07:54, 19 March 2018 (UTC)Reply[reply]

Comment Asking Carl Lindberg to comment. This is a bit complicated case. Regards, Yann (talk) 13:25, 25 March 2018 (UTC)Reply[reply]

For the U.S., the date of death of the author does not matter -- the term is based on date of publication, and other formalities. The term was at most 75 years from publication before 1923, and 95 years from publication since. The definition of "publication" given above is only valid for acts 1978 and later -- it is part of the 1976 Copyright Act. The 1909 Copyright Act did not contain a definition of "publication" (despite its importance), and thus it was left to the courts, and in some aspects (including this one) the result was very different. A public display, in many situations, could indeed be publication. See Commons:Public art and copyrights in the US for more details. The sale of a painting was likely to be considered publication as well, I think. Additionally, when so published, there needed to be a copyright notice. So there were chances all the way up to 1978 for it to be published under the old rules without notice. And anything published before 1964 needed to have a renewal filed in its 28th year, otherwise copyright was also lost. This article mentions that need, including for one of Hopper's paintings (which is not nominated here even though Commons has a copy). Doing a search on Edward Hopper in the catalog of copyright entries finds very little -- I see one for a 1939 painting (Cape Cod Evening), supposedly published in 1946, but it was credited to Encyclopedia Britannica, so that may have been for a derivative work and not the original. And I don't think that was renewed. Most of the works listed above have either PD-US-not_renewed or {{PD-US}} as their tags. The latter one is a catch-all where we aren't sure if it's PD-1923, PD-US-no_notice, or PD-US-not_renewed, but we are sure (beyond a significant doubt) that one of them is true. I participated in the Category:August 2012 Smithsonian American Art Museum Masterpiece Museum edit-a-thon which included several post-1923 paintings which the Smithsonian was confident that copyright had lapsed. If we can find some renewal records, that would be solid evidence for deletion. Additionally, if there were paintings that remained in the family and avoided publication that way, it could also be different. File:CRI 151386.jpg has an invalid license, and File:GasHopper.jpg has a non-U.S. copyright tag, so those would need to be fixed.

The majority of the above files are credited to the Whitney Museum, which could make them more "interesting". It sounds like Hopper left his entire estate to his wife when he died in 1967. She died in 1968, and apparently left all the remaining paintings she owned to the Whitney Museum. Thus, there could be good reason to believe they remained unpublished until at least that point, removing lack of renewal as a possibility. However, apparently her will did not include an assignment of copyright. A 1947 law change made clear that the copyright was separate from the physical object, and the 1976 Copyright Act made it doubly clear that a transfer of copyright had to be in writing. Before 1947, there were some cases which held that the sale of a painting also implicitly transferred the copyright (and I think some cases which went the other way, thus why the 1976 law needed to resolve the issue). The will apparently only mentioned the physical paintings. So technically, the copyrights would go to the Hopper heirs -- except there weren't any hereditary heirs. This book mentions the situation. The book says the Whitney Museum claimed in a 2005 letter to that author that they owned copyright as transferred by the will. Looking at the source pages now, they say © Heirs of Josephine N. Hopper, licensed by the Whitney Museum of American Art. So it sounds like they changed their position, thinking the will contained an implicit license (which may be true) but did not transfer copyright. Obviously the museum has a vested interest in keeping control themselves if they can. The above book though says: Without a de facto estate, a great many of Hopper's works are now treated as if they are in the public domain. I think I would

Keep works not owned by the Whitney Museum, and would still lean keep on the Whitney ones, as the problems seem more theoretical than significant (which is the COM:PRP level) and the chance of publication without notice is still quite real even there, but I could see some arguments to the contrary. Carl Lindberg (talk) 17:06, 25 March 2018 (UTC)Reply[reply]

Comment Even with a loose definition of publication, such as making the original available to the general public, it is still unlikely such was the case for any of these paintings before 1923. — Racconish ^☎ 19:38, 25 March 2018 (UTC)Reply[reply]

I'm pretty sure selling one would be publication, and he sold some before 1923 I'm pretty sure. The definition of publication you were working off of before was not operative then -- you would have to go back to the old "limited publication" vs "general publication" case law and similar. That definition (and the circular you referenced) is only for 1978 and after. I would agree it's unlikely for the Whitney Museum ones though. Carl Lindberg (talk) 20:41, 25 March 2018 (UTC)Reply[reply]

Please have a look at the sources I gave above. It is documentated he first exhibited and sold paintings in late 1923. — Racconish ^☎ 20:51, 25 March 2018 (UTC)Reply[reply]

His article says, "In 1913, at the famous Armory Show, Hopper earned $250 when he sold his first painting, Sailing (1911)." Perhaps that is the only one before 1923. It is possible that even offering them for sale could have been publication though (it is now). Nimmer's definition was that it was publication "when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public, or when an authorized offer is made to dispose of the work in any such manner even if a sale or other such disposition does not in fact occur". Carl Lindberg (talk) 07:23, 26 March 2018 (UTC)Reply[reply]

Comment For those works which predate 1923, I agree with you the criteria for publication are different than those applicable under the 1976 law. Nevertheless, mere exhibition of a painting was not then sufficient per se to establish publication. Under the jurisprudence of American Tobacco Co. v. Werckmeister, when the exhibition was "accompanied by an express or implied prohibition against copying", or when it was "tacitely understood that no copying shall take place", or when the public was "admitted to view the pictures under the implied understanding that no improper advantage will be taken of the privilege", for example when "merely exposing the work to the view of a limited public in a private gallery", then the exhibition did not qualify as a publication (Corpus Juris, 1914, vol. 13, p. 983 [4]). You are also right to point out the exhibition and subsequent sale of Sailing at the Armory Show in 1913. Nevertheless, this sale is an exception and Hopper did not sell another painting until 1924 [5]. In fact his painting exhibitions before 1923 are scarce and we know precisely what was showed and where it was showed. In 1910 he exhibited Le Louvre et la Seine [6] at an Independent show organized by John Sloan and Robert Henri. In 1911 he participated in another group show organized by Henri at the MacDowell Club, where he presented 5 oils : Sailing, Riverboat, Valley of the Seine, Le Bistro and British Steamer [7]; in 1913 he presented 2 oils at the MacDowell Club, Squam Light and La Berge [8]. The same year at the Armory show he presented Sailing and Blackwell's Island [9]. In 1914, he showed again 2 oils at the MacDowell Club Gloucester Harbor and The Bridge [10] and later 5 drawings On the Quai, Land of Fog, The Railroad, The Port and Street in Paris [11]. Later the same year, he showed for the first time an oil in a commercial gallery, Road in Maine at the Montross [12]. In 1915, he was back at the MacDowell Club with 2 oils, Soir Bleu and New York Corner [13], very badly received. In 1915 he presented at the MacDowell Club 3 oils, American Village, Dories and Rocks and Houses [14]. In 1917 he exhibited at the YWCA of Springfield, Ohio, 3 oils : Portrait of Mrs. Sullivan, Rocks and Sand and Summer Street [15]. The same year he showed 2 oils at the first exhibition of the American Society of Independent Artists, American Village and Sea at Ogunquit [16]. In 1920, he exhibited at the Whitney Studio Club 16 oils : Le Bistro, Le Pont des Arts, Le Pont-Neuf, Notre Dame de Paris, Juin, Après-midi de Printemps, Le Parc de St. Cloud, Le Quai des Grands Augustins, Le Louvre et la Seine, Les Lavoirs, Blackhead Monegan, The Little Cove Monegan, Rocks and Houses, Squam Light, La Cité, Road in Maine [17]. In 1921, he sent The Park Entrance for a show at the Pennsylvania Academy of Fine Arts and later the same year showed the same work together with Pont-Royal at the Whitney Studio Club [18]. In 1922 he showed New York Interior at the Whitney Studio Club [ [19]. None of these shows qualify as publications in my opinion. All other works predating 1923 were never exhibited before 1923. Moreover, please refer to the statement of the Whitney Museum reported here. — Racconish ^☎ 21:40, 26 March 2018 (UTC)Reply[reply]

Yes, it would depend on the circumstances of the show, whether it amounted to publication. That would be hard for us to prove, to be sure. It would also be hard to prove if he offered something for sale (which would also be publication). If he sold "Sailing", it would seem likely he was trying to sell the others too. But without proof, we may not be able to assume that. If they were included in catalogs for the shows, that could be publication. Otherwise, the operative date for publication is probably 1964, not 1923, since I do not see any renewals for his stuff. So anything published before 1964 almost certainly became PD. The Whitney Museum claims do get interesting there. Not impossible, but they are dancing on the edge of stuff as well. Based on their current copyright notices, they are no longer claiming to own the copyright. It's not clear if they would have standing to sue in court -- they would have to be an agent for the heirs. The book I referenced seemed to claim that there were no heirs, which would cause the rights to go to New York state, but perhaps the book just meant no direct descendants (where New York would go up to grandparents and any of their descendants which were still living at the time). If the museum found such a person, they certainly could get licenses. But you may need to be an exclusive licensee to have standing to sue, not just a normal license. But it would also mean there is a person who *could* sue, which would then mean they are non-free unless we can determine publication without notice. But that DR you reference also has a statement of "there is no estate or heir to manage rights issues, and each holding museum is, in effect, the copyright holder for the works in its collection" which is odd to say the least. And their "residuary beneficiary" may be an assumption that any property not mentioned in the will goes to people who are mentioned (not family heirs) -- not sure about that, but that may take a New York lawyer. Obviously, the museums have a vested interest in claiming copyright. The situation is muddy to be sure. Carl Lindberg (talk) 22:30, 26 March 2018 (UTC)Reply[reply]

I beg to disagree with your claim that before 1923 offering a painting for sale was a publication. Per American Tobacco Co. v. Werckmeister, merely selling a painting was not a general publication ; the general public also had to be given the opportunity to freely copy it [20]. With the exception of Gas (1940) owned by the MOMA, East Wind (1934) owned by the Pennsylvania Academy of Fine Arts, Girl at Sewing Machine (1921) owned by the Thyssen-Bornemisza Museum and House by the Railroad (1925) owned by the Moma, all the paintings above are part of the Josephine Hopper bequest to the Whitney Museum after a "lengthy legal process" [21]. These works are now licensed by the Museum and copyrighted to the heirs of Edward and Josephine Hopper. The Museum claims to have entered its license agreement with "one of the residuary beneficiaries [of the bequest] confirming [its] ability to license the copyrights for all bequeathed works to the Museum, as well as all other copyrights held by Edward and Josephine Hopper at their deaths and for works by the artist that are owned by the museum" (see related DR here). — Racconish ^☎ 06:17, 27 March 2018 (UTC)Reply[reply]

Reading more, agreed, the courts were more circumspect with original works of art like that, even if that definition above is true for many other types of work. Putting it up for auction may be publication, but offers of sale otherwise likely were not. Whether the Whitney Museum has a realistic claim on the copyright, less sure. And if these paintings were printed in books or pamphlets etc. before 1964, they are probably PD as well. Otherwise, there may be enough doubt to delete. Carl Lindberg (talk) 18:03, 27 March 2018 (UTC)Reply[reply]

Thanks for reconsidering. Appreciated. — Racconish ^☎ 18:59, 27 March 2018 (UTC)Reply[reply]

I've done searching and the following might be relevant:

House by the Railroad (1925) (i.e. File:The House by the Railroad by Edward Hopper 1925.jpg) was published in the following two exhibition catalogs:

Museum of Modern Art, "Paintings by nineteen living Americans", 1930. There does not appear to be a copyright notice and I could not find a renewal.
Museum of Modern Art, "Edward Hopper, retrospective exhibition", 1933. The copyright to this publication was renewed (31Oct60, R265202) with "Museum of Modern Art" as the claimant.

So this artwork is definitely published on or before 1963, the only question is if we should consider the artwork renewed. If not it is PD today, if so it will be PD by 2029.

East Wind Over Weehawken (1934) (i.e. File:East Wind Over Weehawken, Edward Hopper 1934.tiff) appears in the exhibition catalogue for The Corcoran Gallery of Art's "The Fourteenth Biennial Exhibition of Contemporary American Oil Painting", 1935 (see Christie's), which does not appear to have been registered or renewed. I also can't find any evidence that the artwork was separately renewed. This exhibition catalog is close enough to the creation we probably can quite safely call this {{PD-US-not-renewed}}.
I've got a lead on some information regarding Girl at a Sewing Machine (1921) (i.e. File:Edward Hopper - Girl at a Sewing Machine (1921).jpg and File:Girl at Sewing Machine by Edward Hopper.jpg), which I am still researching, but it looks like this might legitimately be {{PD-US-not renewed}} if not {{PD-1923}}.

In addition several of Hopper's famous works (including some at the Whitney) were published in 1950. For example, both Early Sunday Morning (1930) and Gas (1940) (i.e. File:CRI 151386.jpg and File:GasHopper.jpg) appear in the the exhibition catalog Goodrich, Lloyd, Whitney Museum of American Art, "Edward Hopper Retrospective Exhibition", 1950. The copyright to this US publication does not appear to have been registered or renewed. However, at the end it says "The text and illustrations of this catalogue are from a book on Edward Hopper by Lloyd Goodrich published by Penguin Books, Ltd., of England, as a volume in its series, The Penguin Modern Painters, edited by Sir Kenneth Clark." That book was first published in the UK in 1949. So it is a bit muddy if this helps us keep these.

—RP88 (talk) 03:24, 28 March 2018 (UTC)Reply[reply]

Nomination withdrawn for File:East Wind Over Weehawken, Edward Hopper 1934.tiff. — Racconish ^☎ 06:08, 28 March 2018 (UTC)Reply[reply]

I have an appointment next week to review a copy of Hopper's catalogue raisonné. I'll report back if I find anything useful. —RP88 (talk) 20:20, 29 March 2018 (UTC)Reply[reply]

I checked it, together with Levin's book on oil paintings. I have summarized these above on ownership. Don't expect to find much on early publications. I would rather suggest the bibliography in Goodrich's 1978 book. — Racconish ^☎ 21:11, 29 March 2018 (UTC)Reply[reply]

Gas was apparently purchased by MoMA in 1943, and was published in a 1943 catalog Romantic Painting in America. That catalog was renewed in 1970, 28Dec1970 R497196 (original publication of book 24Nov43, A177322). While the "proprietor of copyright in a composite work" was allowed to renew, unsure if these renewals were done that way. In the particular case of Gas, since Hopper had died by the 28th year of copyright, copyright did not vest in any original assignment and would have reverted to his estate or heirs as of the 28th year, lessening the chance that any other party had standing to renew. It does get complicated. Carl Lindberg (talk) 16:09, 29 March 2018 (UTC)Reply[reply]

Deleted: per COM:PCP - this DR has been silent for over two months and all the research did not lead to a clear outcome. --Jcb (talk) 23:25, 2 June 2018 (UTC)Reply[reply]

Commons:Deletion requests/Files in Category:Paintings by Edward Hopper

Files in Category:Paintings by Edward Hopper[edit]

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