''Pushman v. New York Graphic Society'', 287 N.Y. 302 (1942), was a case decided by the

New York Court of Appeals The New York Court of Appeals is the highest court in the Unified Court System of the 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 and confirmed by t ...

that held that, while the

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...

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 Pushman Hovsep Pushman ( hy, Յովսէփ Փուշման; May 9, 1877 – February 13, 1966) was an American artist of Armenian background. He was known for his contemplative still lifes and sensitive portraits of women, often in exotic dress. He was mo ...

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 The University of Illinois Urbana-Champaign (U of I, Illinois, University of Illinois, or UIUC) is a public land-grant research university in Illinois in the twin cities of Champaign and Urbana. It is the flagship institution of the University ...

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 An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...

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 The Appellate Divisions of the Supreme Court of the State of New York are the intermediate appellate courts in New York State. There are four Appellate Divisions, one in each of the state's four Judicial Departments (e.g., the full title of the ...

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 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. The Act spells out the basic rights of copyright holders, cod ...

, which establishes that the transfer of a tangible embodiment of a copyrighted work does not of itself transfer the copyright.

Robert A. Gorman Robert A. Gorman (born April 22, 1937) is the Kenneth W. Gemmill Professor Emeritus at the University of Pennsylvania Law School. Biography Gorman was born in New York City. Gorman obtained an A.B. ''summa cum laude'' from Harvard College in 195 ...

and Jane C. Ginsburg, ''Copyright Cases and Materials, Seventh Edition.'' Foundation Press, New York: 2006, p. 73

References

{{reflist United States copyright case law 1942 in United States case law New York (state) state case law 1942 in New York (state)