## Facts

- Hovsep Pushman created an unpublished oil painting, “When Autumn is Here,” and did not secure federal statutory copyright.
- Pushman consigned the painting to Grand Central Art Galleries to sell as his agent.
- The gallery sold the painting to the University of Illinois for $3,600 by an absolute, unconditional bill of sale.
- Pushman made no express reservation of reproduction rights in the sale documents or otherwise.
- About ten years later, the University sold the right to reproduce the painting to New York Graphic Society, Inc.
- After defendants prepared reproduction proofs and planned commercial distribution, Pushman sued to enjoin reproductions, claiming he retained a common-law copyright.

## Issues

1. Whether an artist who makes an absolute, unconditional sale of the only tangible embodiment of an unpublished, uncopyrighted painting, without expressly reserving reproduction rights, retains common-law copyright sufficient to bar reproductions by the purchaser or its transferees.

## Decision

- The New York Court of Appeals affirmed the dismissal of the complaint and denied injunctive relief.
- The court held that an absolute and unconditional sale of the unique, unpublished painting, without reservation, transferred the common-law copyright along with the chattel.
- Because the University acquired the common-law copyright, it could validly authorize and transfer reproduction rights to defendants.

## Legal Principles

- Common-law copyright protects unpublished works as a property interest governed by state common law when federal statutory copyright has not been obtained.
- When the only existing tangible embodiment of an unpublished work is sold by an absolute and unconditional conveyance, the sale presumptively transfers all incidents of ownership, including common-law copyright, unless the artist expressly reserves rights.
- Reproduction and other intangible rights may be separated from the physical object only by clear contractual reservation at the time of transfer.
- Certainty in art and property transactions favors treating unconditional purchasers of unique works as acquiring full dominion absent express limitations.

## Conclusion

The court held that Pushman’s unconditional sale of his unique unpublished painting, without any express reservation of reproduction rights, transferred the common-law copyright to the buyer; therefore, Pushman could not stop authorized reproductions derived from the painting.


Pushman v. N.Y. Graphic Soc’y, Inc., 287 N.Y. 302, 39 N.E.2d 249 (1942)