''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 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, educatio ...

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 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 Univer ...

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