The Captured Economy is divided into four relatively isolated policy areas, which makes it all the more exciting when one issue crosses over into two separate policy domains.
Remember the Florida couple who painted a mural of Starry Night on their home so their autistic son could easily identify the house if he got lost? After they prevailed over the town of Mount Dora’s attempt to remove what was first called “graffiti” and then an illegal sign, they find themselves in a very different legal battle.
Lubomir Jastrzebski and Nancy Nemhauser [the homeowners] are locked in a dispute with artist Richard Barrenechea over who has the licensing rights to the mural that Barrenechea painted on their house this year…
But as the home drew statewide, and then national, attention, Barrenechea tried selling merchandise with the home’s image. He argues that copyrights are implied for artists’ work unless otherwise noted on a contract or agreement…
When Jastrzebski and Nemhauser found out that Barrenechea had begun selling the Starry Night merchandise, they were not pleased and said they were not aware that anyone was profiting from the mural.
The homeowners said they were under the impression that they were the rightful owners of the copyright since the mural adorns their home and because they paid Barrenechea to paint it.
Who’s in the legal right here? Traditionally, the copyright belongs to the creator. If, say, Barrenchea had painted a mural on his own home or put a design on his personal website, the rights to that work would be his. Indeed, Barrenchea claims he registered the mural with the U.S. Copyright Office.
Sometimes, however, if a creative work is “made for hire,” the copyright goes to the employer, even if the employee created the actual work (e.g. a newspaper would hold the rights to an article written by a reporter.)
What this turns on is the nature of the arrangement between Barrenchea and the homeowners. If Barrenchea were an employee of theirs, then the copyright would belong to them.
Barrenchea was specifically hired to paint the mural, but because Barrenchea’s contract with the couple did not explicitly state the work would be considered made for hire, according to the Copyright Office it is his copyright.
Any final rulings will likely take some time, but there’s a certain irony that this controversy surrounds a reproduction of van Gogh’s The Starry Night, arguably one of the most famous paintings ever made.
Both parties are attempting to monetize on a unique implementation of an old idea. Starry Night, painted in 1889, is in the public domain, and therefore free to use by anyone. Yet here is a case where two parties are fighting over the monopoly rights to a specific form of an already-existing piece of art.