Contributions

Can an Art Gallerist Own the Copyright in an Art Exhibit? Evaluating the Limiting Principles in the Copyright Act’s Definition of a Collective Work

by Michael J. Glad­stone*

Con­sid­er the fol­low­ing sce­nario: an art gal­lerist com­mis­sions thou­sands of artists to cre­ate indi­vid­ual sculp­tures and then assem­bles them togeth­er into a per­ma­nent art instal­la­tion. One of the com­mis­sioned artists, who had cre­at­ed a cen­ter­piece of the instal­la­tion, starts sell­ing mini repli­cas of his sculp­ture online. The gal­lerist claims that he owns the copy­right in the cen­ter­piece. Because the gal­lerist believes he has the right to con­trol the dis­tri­b­u­tion of deriv­a­tive works like the repli­cas, and because he wor­ries the online sales will dilute the val­ue of his instal­la­tion, he orders the artist to stop. The artist, mean­while, claims that he owns the copy­right in his work, and he there­fore believes that he alone has the right to sell the repli­cas. The artist and the gal­lerist, unable to rec­on­cile their dis­agree­ment, end up in court.

The court is then tasked with decid­ing who owns the copy­right in the under­ly­ing work: the artist who cre­at­ed the work or the gal­lerist who com­mis­sioned it? The pri­ma­ry jus­ti­fi­ca­tion for copy­right is to pro­vide ade­quate incen­tives for the cre­ation of new artis­tic and lit­er­ary works.1 It takes a lot of effort to cre­ate some­thing anew and rel­a­tive­ly lit­tle effort to copy some­one else’s work.2 With­out an exclu­sive prop­er­ty right—a copyright—in that cre­ation, artists and writ­ers might have lit­tle incen­tive to cre­ate in the first place.3 In this hypo­thet­i­cal ques­tion, how­ev­er, more than one par­ty was involved in the cre­ation of the work. In these sit­u­a­tions, how should copy­right law incen­tive the cre­ation of new works? The artist is the one who puts the time, effort, and skill into cre­at­ing a work. But the work nev­er would have come about with­out the fund­ing and vision of the com­mis­sion­ing par­ty: the gal­lerist. Only one par­ty gets to own the copy­right in the work.4 There­fore, only one par­ty has the right to make copies, pre­pare deriv­a­tive works, dis­trib­ute the work for sale, and dis­play the work pub­licly.5 At least in the case of per­ma­nent art instal­la­tions, that par­ty should be the gallerist.

* * * * *

While the default rule in copy­right law is that the par­ty who cre­ates the work owns the copy­right in the work, the “work made for hire” pro­vi­sion of the Copy­right Act has some excep­tions.6 Con­gress rec­og­nized that, some­times, the best way to advance the pub­lic wel­fare through the tal­ents of artists was to grant copy­rights to the par­ty at whose finan­cial risk the work was cre­at­ed.7 Accord­ing­ly, inde­pen­dent con­trac­tors like the artist in this hypo­thet­i­cal can agree to sign away their copy­right own­er­ship in their works to com­mis­sion­ing par­ties when: (1) the two par­ties express­ly agree in writ­ing that the work will be a “work made for hire” and (2) the work is spe­cial­ly ordered or com­mis­sioned for use as a work with­in one of nine enu­mer­at­ed cat­e­gories.8 These nine cat­e­gories are (i) a con­tri­bu­tion to a col­lec­tive work, (ii) a part of a motion pic­ture or oth­er audio­vi­su­al work, (iii) a trans­la­tion, (iv) a sup­ple­men­tary work, (v) a com­pi­la­tion, (vi) an instruc­tion­al text, (vii) a test, (viii) an answer mate­r­i­al for a test, and (ix) an atlas.9

The focus of this Con­tri­bu­tion is the first cat­e­go­ry: “a con­tri­bu­tion to a col­lec­tive work.” If the work is a “con­tri­bu­tion to a col­lec­tive work” then it is a “work made for hire,” and the gal­lerist owns the copy­right. Oth­er­wise, the artist owns it. Thus, whether the artist or the art gal­lerist owns the copy­right in the artist’s con­tri­bu­tion turns on the def­i­n­i­tion of a “col­lec­tive work.”

The Copy­right Act defines a “col­lec­tive work” as:

a work, such as a peri­od­i­cal issue, anthol­o­gy, or ency­clo­pe­dia, in which a num­ber of con­tri­bu­tions, con­sti­tut­ing sep­a­rate and inde­pen­dent works in them­selves, are assem­bled into a col­lec­tive whole.10

This def­i­n­i­tion has two oper­a­tive phras­es: (i) “such as a peri­od­i­cal issue, anthol­o­gy, or ency­clo­pe­dia” and (ii) “assem­bled into a col­lec­tive whole.” An analy­sis of these two oper­a­tive phras­es sup­ports the con­clu­sion that the artist’s con­tri­bu­tion to the art instal­la­tion is indeed a “con­tri­bu­tion to a col­lec­tive work.”

Such as a Periodical Issue, Anthology, or Encyclopedia”

This lan­guage hints at a restric­tive inter­pre­ta­tion, one that would not embrace inclu­sion of an art gallery in its def­i­n­i­tion. First, inclu­sion of the “such as” phrase is note­wor­thy. If Congress’s intent were to embrace all types of works, one could argue that leg­is­la­tors would not have includ­ed the “such as” phrase.11

Adding fur­ther sup­port to this view­point is the fact that the three enu­mer­at­ed works—periodical issues, antholo­gies, and encyclopedias—all have an unde­ni­able lit­er­ary qual­i­ty. Accord­ing­ly, Congress’s intent may have been to lim­it col­lec­tive works to works that have a lit­er­ary qual­i­ty, are pub­lished, and can­not be disassembled.

Addi­tion­al evi­dence sug­gests that Con­gress could have broad­ened the def­i­n­i­tion if it had intend­ed to do so. For exam­ple, it could have adopt­ed the lan­guage “peri­od­i­cal issue, anthol­o­gy, ency­clo­pe­dia, or any oth­er work.” That is pre­cise­ly what Con­gress did just a few def­i­n­i­tions lat­er in the Copy­right Act when it defined the phrase “deriv­a­tive work.” There, Con­gress used the def­i­n­i­tion “a work based upon one or more pre­ex­ist­ing works, such as a trans­la­tion, musi­cal arrange­ment, drama­ti­za­tion, fic­tion­al­iza­tion, motion pic­ture ver­sion, sound record­ing, art repro­duc­tion, abridge­ment, con­den­sa­tion, or any oth­er form in which a work may be recast, trans­formed, or adapt­ed.”12

More­over, the Supreme Court has instruct­ed courts to read and con­strue statutes as a whole to avoid redun­dan­cies.13 If one were to read the def­i­n­i­tion of a col­lec­tive work too broad­ly, it would make some of the oth­er enu­mer­at­ed cat­e­gories redun­dant. For instance, “motion pic­tures” often involve many thou­sands of com­mis­sioned con­tri­bu­tions that are ulti­mate­ly assem­bled into a col­lec­tive whole.14 But Con­gress list­ed “motion pic­tures” sep­a­rate­ly from “col­lec­tive works.”15 This place­ment sug­gests that “col­lec­tive works” are per­haps not a catch-all for any work in which com­mis­sioned con­tri­bu­tions are assem­bled into a whole.

On the oth­er hand, in writ­ing the def­i­n­i­tion of “col­lec­tive work,” Con­gress may have mere­ly intend­ed to pro­vide three exam­ples. This argu­ment is the bet­ter one. It stays true to the mean­ing of “such as,” finds ample sup­port in case law, and best advances the pur­pose of the Copy­right Act.

Impor­tant­ly, this inter­pre­ta­tion finds sup­port from the Supreme Court itself. In one of its most famous copy­right deci­sions, the Court express­ly held that the Copy­right Act’s use of “such as” is meant to be “illus­tra­tive and not lim­i­ta­tive.”16 There, the fair use pro­vi­sion, a whol­ly dif­fer­ent pro­vi­sion, was at issue.17 How­ev­er, courts have rou­tine­ly pre­sumed that the use of the same expres­sion in dif­fer­ent parts of a statute imply the same mean­ing.18 There­fore, when Con­gress used “such as” in the def­i­n­i­tion of a col­lec­tive work, there, too, it intend­ed to be “illus­tra­tive.”

In line with this inter­pre­ta­tion, courts around the coun­try have had lit­tle trou­ble con­clud­ing that cat­e­gories of works beyond lit­er­ary ones can be col­lec­tive works. The Fifth Cir­cuit, in Apple Bar­rel Pro­duc­tions v. Beard, held that a coun­try music pro­gram com­prised of var­i­ous live per­for­mances is a col­lec­tive work.19 Notably, one year lat­er, the same court decid­ed Can­field v. Pon­cha­toula Times, in which it held that news­pa­pers are col­lec­tive works because they are “peri­od­i­cals.”20 Despite rely­ing on the enu­mer­at­ed cat­e­go­ry of ‘peri­od­i­cal’ in its deci­sion in Can­field, the court did not over­rule its hold­ing in Apple Bar­rel—imply­ing that works with­out a lit­er­ary qual­i­ty can still be col­lec­tive works. Sim­i­lar­ly, the Fourth Cir­cuit has held that a col­lec­tion of pho­tographs is a col­lec­tive work.21 And recent­ly, the South­ern Dis­trict of New York held that a programmer’s cre­ation and com­bi­na­tion of var­i­ous com­put­er pro­grams were con­tri­bu­tions to a col­lec­tive work.22

While these courts’ expan­sive inter­pre­ta­tion makes the def­i­n­i­tion of a “col­lec­tive work” redun­dant, both Melville Nim­mer, the pre­em­i­nent copy­right schol­ar, and the Copy­right Office itself have acknowl­edged that col­lec­tive works can be any type of work.23 As sup­port for this propo­si­tion, many schol­ars posit that leg­is­la­tures are often delib­er­ate­ly redun­dant and rein­forc­ing with their lan­guage.24

Case law is not the only thing that weighs in favor of this expan­sive inter­pre­ta­tion. In fact, a nar­row lim­it­ing prin­ci­ple would be prob­lem­at­ic. The Copy­right Act is meant to embrace new forms of cre­ativ­i­ty.25 Fail­ing to give copy­right pro­tec­tion to works mere­ly because they are not like peri­od­i­cal issues, antholo­gies, and ency­clo­pe­dias could sti­fle inno­va­tion. After all, cre­ators might be unwill­ing to assem­ble cer­tain works if oth­ers would then be free to copy their creations.

Assembled into a Collective Whole”

For a work to be a “col­lec­tive work,” the con­stituent parts must be “assem­bled into a col­lec­tive whole.” Notably, no court has yet held that an art gallery exhib­it is a col­lec­tive work. But that fact is unsur­pris­ing. Most art exhibits fea­ture pieces of art­work dis­played side by side or togeth­er in the same room.26 That type of col­lec­tion is cer­tain­ly not what Con­gress had in mind when it required that works be “assem­bled into a col­lec­tive whole.”

One recent case that address­es a sim­i­lar issue is Kas­ten v. Jer­ry­tone.27 There, an entre­pre­neur com­mis­sioned a local artist to cre­ate paint­ings of the French Quar­ter in Louisiana.28 He ulti­mate­ly imprint­ed images of the paint­ings on indi­vid­ual greet­ing cards and sold them as a set.29 When the entre­pre­neur tried to enforce his copy­right in the indi­vid­ual paint­ings, the court ruled that the paint­ings were not con­tri­bu­tions to a col­lec­tive work.30

Because of the court’s rather cur­so­ry analy­sis, one might mis­tak­en­ly view the case as a sig­nal that a piece of art­work can­not be a con­tri­bu­tion to a col­lec­tive work. How­ev­er, rather than cat­e­gor­i­cal­ly dis­miss­ing art­work as out of scope to reach its con­clu­sion, the Kas­ten court did some­thing dif­fer­ent. It implic­it­ly eval­u­at­ed whether the greet­ing cards were “assem­bled into a col­lec­tive whole.” Because each greet­ing card was self-con­tained and meant to be used indi­vid­u­al­ly, the court held that they did not meet this definition.

Kas­ten thus con­firms an impor­tant truth: the layman’s “col­lec­tion” is not the Copy­right Act’s “col­lec­tive work.” Assem­bling con­tri­bu­tions into a col­lec­tive whole with­in the mean­ing of the Copy­right Act entails some­thing more than assem­bling them side by side like in an art gallery or in a pack­aged set like in Kas­ten. Courts have not yet found occa­sion to answer this seem­ing­ly elu­sive, and per­haps meta­phys­i­cal, ques­tion of what it means for works to be “assem­bled into a col­lec­tive whole.” Per­haps they do not have to. As Jus­tice Pot­ter Stew­art once famous­ly said of hard-core pornog­ra­phy: “I know it when I see it.”31

Per­haps the one type of art exhib­it that could qual­i­fy for this def­i­n­i­tion is an art instal­la­tion com­prised of inde­pen­dent con­tri­bu­tions. After all, with an instal­la­tion, the works are unmis­tak­ably tied togeth­er in a way that the com­po­nent parts of a typ­i­cal art exhib­it are not.

Once a judge can accept that a work con­tains works “assem­bled into a col­lec­tive whole,” the rest of the analy­sis fol­lows smooth­ly. For com­pi­la­tions, of which col­lec­tive works are a part, one receives a copy­right for the orig­i­nal selec­tion, coor­di­na­tion, and arrange­ment of pre­ex­ist­ing mate­r­i­al.32 The Supreme Court has explic­it­ly held that the bar for orig­i­nal­i­ty is not high.33 Con­se­quent­ly, if col­lec­tive works were lim­it­ed to only cer­tain works, the Copy­right Act would have an unfair loop­hole. That is, if a work is not a “col­lec­tive work,” then the copy­right in the selec­tion, arrange­ment, and coor­di­na­tion of that work vanishes.

Oth­ers would be left to dupli­cate the exact same arrange­ments and license the under­ly­ing con­tri­bu­tions. Such a hold­ing would be unprob­lem­at­ic for gal­lerists who assem­bled art­work side by side in a gallery but would be whol­ly unac­cept­able for gal­lerists who cre­ate instal­la­tions. In fact, it would dis­in­cen­tivize them from com­mis­sion­ing col­lec­tive instal­la­tions in the first place. That inter­pre­ta­tion would run counter to the Copy­right Act’s goal of encour­ag­ing inno­va­tion in the arts.

In the­o­ry, as a workaround, inde­pen­dent con­trac­tors could each copy­right their work to start and then the com­mis­sion­ing par­ty could assem­ble them into a com­pi­la­tion. After all, that arrange­ment would still allow the com­mis­sion­ing par­ty a copy­right in the over­all work. How­ev­er, that arrange­ment would leave inde­pen­dent con­trac­tors with copy­rights in their works. That would be prob­lem­at­ic. Thus, in the hypo­thet­i­cal, the artist would be free to sell mini repli­cas online. And while the gal­lerist would have an implic­it license to use the under­ly­ing works in the instal­la­tion,34 the artists could ter­mi­nate that license after a set num­ber of years have expired (called a “ter­mi­na­tion of trans­fer”),35 jeop­ar­diz­ing the long-term via­bil­i­ty of what was sup­posed to be a per­ma­nent installation.

Even if the artists did not go so far as to pull the plug on the license, they would still have the right to rene­go­ti­ate the licens­es, forc­ing the gal­lerist to engage in an exhaus­tive num­ber of con­ver­sa­tions with con­trib­u­tors.36 And artists, if they owned the copy­right, would be free to license the same works to rival gal­lerists.37 Any of these rights would put the com­mer­cial via­bil­i­ty of the gallerist’s per­ma­nent instal­la­tion at risk. The “work made for hire” pro­vi­sion was designed to pre­vent this very outcome.

*****

The “work made for hire” pro­vi­sion presents an excep­tion to the rule that the copy­right in a work is award­ed to the per­son who cre­ates a work.38 Con­gress rec­og­nized that, in cer­tain cir­cum­stances, it could more effec­tive­ly pro­mote cre­ativ­i­ty by award­ing a copy­right to the com­mis­sion­ing par­ty, who took on eco­nom­ic risk. Accord­ing­ly, Con­gress struck a bal­ance, enu­mer­at­ing cer­tain cat­e­gories for which the copy­right would be auto­mat­i­cal­ly assigned to the com­mis­sion­ing par­ty and leav­ing all oth­er works to be assigned to the cre­ator him­self.39

A cer­tain temp­ta­tion exists to want to nar­row the scope of “col­lec­tive work” giv­en Congress’s seem­ing­ly thought­ful line-draw­ing. How­ev­er, courts and schol­ars have adopt­ed a broad inter­pre­ta­tion of the def­i­n­i­tion for good rea­son. Award­ing the copy­right to the com­mis­sion­ing par­ty of a col­lec­tive work allows them to exer­cise con­trol over the con­stituent parts and ensure that con­trib­u­tors do not dilute the val­ue of their artis­tic vision.

* Michael J. Glad­stone is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on a prob­lem pre­sent­ed at the Car­do­zo BMI Enter­tain­ment and Media Law Moot Court Com­pe­ti­tion, which took place vir­tu­al­ly in March 2021. The views expressed in this con­tri­bu­tion do not nec­es­sar­i­ly rep­re­sent the views of the author.


1. See Melville Nim­mer & David Nim­mer, 1 Nim­mer on Copy­right § 1.03 [A][1]. The Unit­ed States Con­sti­tu­tion itself gives Con­gress the pow­er to enact copy­right laws to “pro­mote the Progress of Sci­ence,” which is bet­ter under­stood today to mean the encour­age­ment of learn­ing. U.S. Con­st. art. I, § 8, cl. 8; Melville Nim­mer & David Nim­mer, 1 Nim­mer on Copy­right § 1.03 [A][2] (fur­ther hypoth­e­siz­ing that “use­ful Arts,” men­tioned in the same clause of the Con­sti­tu­tion, are the sub­ject of patent law and not copy­right law).

2. See Nim­mer, supra note 1, § 1.03 [A][1].

3. See id.

4. U.S. copy­right law does have a “joint work” pro­vi­sion that pro­vides for joint own­er­ship of a work, but that pro­vi­sion is like­ly inap­plic­a­ble here. A “joint work” is a work pre­pared by two or more authors with the inten­tion that their con­tri­bu­tions be merged into insep­a­ra­ble or inter­de­pen­dent parts of a uni­tary whole. 17 U.S.C. § 101.

5. These are some of the core exclu­sive rights in copy­right­ed work pre­scribed by 17 U.S.C. § 106.

6. See 17 U.S.C. § 101, 201(b).

7. Robert Penchi­na, The Cre­ative Com­mis­sion­er: Com­mis­sioned Works Under the Copy­right Act of 1976, 62 N.Y.U. L. Rev. 373, 386 (1987).

8. 17 U.S.C. § 101.

9. Id.

10. See id.

11. Cf. Unit­ed States v. But­ler, 297 U.S. 1, 65 (1936) (giv­ing weight to all words in the Con­sti­tu­tion as to not ren­der any of them meaningless).

12. 17 U.S.C. § 101 (empha­sis added).

13. Unit­ed States v. Am. Truck­ing Ass’ns, 310 U.S. 534, 543–44 (1940) (explain­ing that “pur­pose, rather than the lit­er­al words” can help courts avoid “absurd” inter­pre­ta­tions of statutes).

14. Stephen Fol­lows, How many peo­ple work on a Hol­ly­wood film?, Stephen Fol­lows: Film Data and Edu­ca­tion (Feb. 24, 2014), https://stephenfollows.com/how-many-people-work-on-a-hollywood-film/.

15. See 17 U.S.C. § 101.

16. Camp­bell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

17. Id. at 574.

18. See, e.g., Amarin Pharms. Ir. Ltd. v. FDA, 106 F. Supp. 3d 196, 210 (D.C. Cir. 2015) (explain­ing that, in the ordi­nary course, iden­ti­cal words used in dif­fer­ent parts of the same statute are intend­ed to have the same meaning).

19. 730 F.2d 384, 388 (5th Cir. 1984).

20 759 F.2d 493, 495 (5th Cir. 1985).

21. Metro. Reg’l Info. Sys. v. Am. Home Real­ty Net­work, Inc., 722 F.3d 591, 596 (4th Cir. 2013); cf. Mind­lab Media, LLC v. LWRC Int’l, LLC, 2013 WL 1141987, at *5 (C.D. Cal. Mar. 18, 2013) (hold­ing that a pho­to­graph to be used in a col­lec­tion of pho­tographs for pro­mo­tion­al pur­pos­es is a con­tri­bu­tion to a col­lec­tive work).

22. Stanac­ard, LLC v. Rubard, LLC, 2016 WL 462508, at *8 (S.D.N.Y. Feb. 3, 2016); cf. IXL, Inc. v. AdOutlet.com, Inc., 2001 WL 315219, at *9 (N.D. Ill. Mar. 29, 2001) (hold­ing that source code writ­ten for each sec­tion of a web­site is a sep­a­rate, inde­pen­dent con­tri­bu­tion to a col­lec­tive work).

23. 11 Nim­mer on Copy­right 711(reading the def­i­n­i­tion of “col­lec­tive work” to include “any oth­er work” that con­tains a num­ber of sep­a­rate and inde­pen­dent works); Unit­ed States Copy­right Office Infor­ma­tion Cir­cu­lar 34 at 3, Mul­ti­ple Works (avail­able at https://www.copyright.gov/circs/circ34.pdf).

24. “[The sur­plusage canon] must be applied with judg­ment and dis­cre­tion [because] . . . [s]ometimes drafters do repeat them­selves and do include words that add noth­ing of sub­stance, either out of a flawed sense of style or to engage in the . . . belt-and-sus­penders approach.” Antonin Scalia & Bryan A. Gar­ner, Read­ing Law: The Inter­pre­ta­tion of Legal Texts 176–77 (2012).

25. Reg­is­ter of Copy­rights, 87th Cong., 1st Sess., Report on the Gen­er­al Revi­sion of the U.S. Copy­right Law 5 (H.R. Judi­cia­ry Comm. Print 1961) (“[T]he ulti­mate pur­pose of copy­right leg­is­la­tion is to fos­ter the growth of learn­ing and cul­ture for the pub­lic wel­fare, and the grant of exclu­sive rights to authors for a lim­it­ed time is a means to that end.”).

26. See What Is An Art Exhi­bi­tion?, Vir­to­su Art Gallery (Apr. 4, 2020), https://www.virtosuart.com/blog/what-is-an-art-exhibition (last vis­it­ed Sept. 22, 2021).

27. 2004 U.S. Dist. LEXIS 16540 (E.D. La. Aug. 16, 2004).

28. Id. at *2.

29. Id. at *5.

30. Id. at *15.

31. Jaco­bel­lis v. Ohio, 378 U.S. 184, 197 (1974) (Stew­art, J. concurring).

32. 17 U.S.C. § 101, 103.

33. Feist Publ’ns, Inc. v. Rur­al Tel. Serv. Co., 499 U.S. 340, 345 (1991) (rea­son­ing that to qual­i­fy for copy­right pro­tec­tion, a work need only pos­sess a “min­i­mal degree of creativity”).

34. See, e.g., Effects Assoc., Inc. v. Cohen, 908 F.2d 555, 558–59 (9th Cir. 1990) (hold­ing that the par­ties’ course of con­duct cre­at­ed an implied license to use the spe­cial effects footage in the defendant’s motion picture).

35. 17 U.S.C. § 203(a)(3).

36. See Sound Record­ings as Works Made for Hire: Hear­ings Before the Sub­comm. on Cts. and Intel­lect. Prop. of the H. Comm. on the Judi­cia­ry, 106th Cong. 257 (2000) (explain­ing that the works in the nine enu­mer­at­ed cat­e­gories tend to be works done at the “instance, direc­tion, and risk” of a pro­duc­er where it would be unfair to allow the con­trib­u­tors to ter­mi­nate assign­ments of rights or where the works involved so many under­ly­ing con­trib­u­tors that allow­ing ter­mi­na­tion would cre­ate chaos).

37. See supra note 5 and accom­pa­ny­ing text.

38. East­er Seal Soc’y for Crip­pled Chil­dren & Adults of La., Inc., v. Play­boy Enters., 815 F.2d 323, 328 (5th Cir. 1987) (cit­ing 17 U.S.C. § 201).

39. Penchi­na, supra note 7 at 386.