The copyright holder of Constantin Brâncuși Sculpture

Who is the copyright holder of the Sculpture Ensemble located in Târgu Jiu, created by Constantin Brâncuși? Logical and legal reasoning.

Many know the famous Endless Column created by Constantin Brâncuși. Still, few know that the copyright holder of Constantin Brâncuși Sculpture Ensemble located in Târgu Jiu (hereinafter referred to as “the Work“) is still a controversial issue. There are many voices that support a different theory than the one set forth below, based on a seemingly irrefutable jurisprudential solution.

According to the final decision issued by a national court in 2004 and confirmed by the High Court of Cassation and Justice, the owner of the copyright in the Opera is Theodor Nicol, a Canadian citizen of Romanian origin. His copyright would not expire until 2051.

In reality, this decision is based on a clerical error that affected the Romanian copyright law (in force at the time the judgment was issued) – as such error was also subsequently acknowledged by the Romanian High Court of Cassation and Justice – so that the entire logical and legal reasoning behind the decision becomes extremely weak.

The conclusion we will reach and argue in detail below is that the copyright of the Work has been in the public domain since 1973, so anyone can use / sell images of the Work (or souvenirs that take the form of the Work) without any agreement or payment of any royalties.

A very important aspect to be noted before going through this legal opinion is that the court’s decision mentioned above, according to which the copyright holder is Mr. Theodor Nicol, is binding exclusively between the parties to the legal dispute. Used in any other context (for example, as evidence in another litigation), the decison would not be immune from criticism and proof to the contrary.

For the avoidance of any doubt, we would hereby give an opinion on the legal status of the copyright on the Work (hereinafter referred to as “copyright”), the ownership right of the Work in itself belonging without any doubt to the Targu Jiu City Hall.

• Relevant sequence of dates

At the initiative of Arethia Tătărescu, president of the Women’s League Association of Gorj, Constantin Brâncuși started the construction of the Work. The Work was inaugurated on 7 November 1937. Constantin Brâncuși refused to receive any remuneration for the Work and donated the sculptural ensemble to the city of Targu-Jiu.

In 1956, Constantin Brâncuși decided that the Istrati couple, French citizens of Romanian origin, shall be his universal legatees. Constantin Brâncuși died on 16 March 1957. On 3 July 1997, Mrs. Istrati was the last one to die of the legatees. In their turn, on 27 February 1996, the Istrati’s appointed Theodor Nicol, a Canadian citizen of Romanian origin, as their universal legatee.

• Succession of the laws applicable to copyright of the Work

The first question that arises is what is the law applicable to the copyright over the Work? Romanian or French law (considering the hypothesis in which Brâncuși would have renounced Romanian citizenship and would have kept exclusively the French one)?

Even in the latter (although unlikely) case, the protection of the Work is still governed by Romanian law, according to Art. 5 para. (3) of the Berne Convention “protection in the country of origin shall be governed by national law. However, if the author is not a national of the country of origin of the Work for which he is protected by this Convention, he shall have the same rights in that country as national authors”. And the Work’s country of origin, according to the next paragraph, is certainly Romania.

From 27 June 1956 to 23 June 1996, Decree No. 321/1956 on copyright (hereinafter referred to as the ‘Decree’), had the following relevant provisions:

• The term of copyright protection is 50 years from death for descendants and surviving spouse.
• As an exception, other categories of heirs (such as the Istrati spouses, testamentary heirs) are transferred copyright but for a period of 15 years, without the possibility of retransmission. This period is calculated from 1 January of the year following the author’s death [Art. 6 let. c) of the Decree].
• With regard to copyright transferred to heirs / legatees, the law in force on the date of the author’s death (in this case, the law in force in 1957) applies.
• The assignment of the copyright does not include the transfer of the ownership right over the object (e.g. sculpture, painting), just as the transfer of the ownership right over the object does not include the transfer of the right of reproduction, multiplication or dissemination, unless otherwise agreed [Art. 22 of the Decree].

Starting with 14 June 1996, Law no. 8/1996 on copyright and related rights (hereinafter referred to as “Law No. 8/1996”) abolished the Decree and provided in Art. 149 para. (3) that “(3) The copyright term of on works created by authors who died before the entry into force of this Law and for which the terms of protection have expired shall be extended until the term of protection provided for in this Law. The extension shall take effect only from the entry into force of this Law.”

On 30 July 2004, Law no. 285/2004 amending and supplementing Law no. 8/1996, art. 149 para. (3) above has undergone a huge change, which helped to align it with the constitutional principle of non-retroactivity in time of the law: “The duration of copyrights on works created before the entry into force of this law and for which the terms of protection calculated according to the procedures of previous legislation have not expired, is extended until the term of protection provided for in this law. The extension shall take effect only from the entry into force of this law.”

For ease of comparison, the essential amendment to Art. 149 para. (3) of Law no. 8/1996, which was introduced on 30 July 2004 by Law no. 285/2004 is as follows:

• Copyright dispute in which it was decided that the copyright over the Work belongs to Mr Theodor Nicol

In 2002, VISARTA – Romanian Society for the Collective Management of Copyright in the Visual Arts Sector initiated a dispute against Târgu Jiu City Hall, claiming that the copyright over the Work belonged to its legal successor (Theodor Nicol) and not to Târgu Jiu City Hall.

On 25 February 2004, the first court found that the copyright holder of the Work was Mr Theodor Nicol, a Canadian citizen of Romanian origin.

The case was decided on appeal on 14 November 2005, and the decision became final (and irrevocable, in accordance with the law at the time) further to a decision issued by the High Court of Cassation and Justice.

In reaching this decision, the court took into account the succession in time of copyright laws, applying the law in force at the time the litigation started, i.e. 2002.

Therefore, the court relied on Art. 149 para. 3 of Law 8/1996 – as in force prior to 30.07.2004: “The term of exploitation rights on works created by authors who died before the entry into force of this law and for which the terms of protection have expired is extended until the term of protection provided for in this law. The extension shall take effect only from the entry into force of this Law.”

Based on the mentioned legal provisions it was established that, at the date of Mrs. Istrati’s death (1997), she was the copyright holder, which she passed on by succesion to Mr. Theodor Nicol, who became the copyright holder after her death.

• Legal Considerations on the Copyright over the Work

Art. 149 para. (3) of Law no. 8/1996 (in the form applicable at the time of the litigation, and based on which the court issued the decision) had undergone an essential change in 2004.

In fact, this amendment was intended to remove a drafting error which gave rise to legal effects that were totally contrary to any legal logic, principles of law and even national (Romanian) and Community laws.

This conclusion could also be drawn from two decisions of the High Court of Cassation and Justice, which support this reasoning:

• “Although in its original wording, the text of Art. 149 para. (3) had omitted the particle ‘not’ from the reference to ‘works for which the term of protection has expired’, ‘extension’ has a meaning in connection with an ongoing activity. If it had been intended to refer to works that had already fallen into the public domain, there would have been no question of extending the term of protection, but simply of regulating a new one, which would have been inconceivable for all works whose term of protection had expired before 1996, without any time limit. In reality, the text suffered from a material error, which was corrected by Law no. 285/2004, amending Law no. 8/1996, to the effect that Art. 149 para. (3) unequivocally refers to works for which the term of protection has not expired. “(Decision no. 1170/2011 of the High Court of Cassation and Justice).
• “In this case too, the Court of Appeal misinterpreted and misapplied the provisions of Law no. 8/1996, ignoring the 2004 amendment. (…) Moreover, if it were considered that the text of the 1996 law does not contain a drafting error and that it provides for the revival of works that have already fallen into the public domain, then it would be in contradiction with the international provision in Art. 18 para. (2) (n.n.of the Berne Convention), which states that it is not possible for a work that has fallen into the public domain to be protected again. In the event of a conflict between the provision in national law and the international provision, Art. 20 para. (2) of the Romanian Constitution.” (Decision no. 5733/2013 of the High Court of Cassation and Justice).

The form prior to the 2004 amendment of Art. 149 para. (3) of Law no. 8/1996 also contravenes the constitutional principle of non-retroactivity of the law in time, by applying to legal situations that began and ended before its entry into force.

Moreover, it also contravenes the Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights (hereinafter “the Directive”), the application of which takes precedence over national law and which provides that:

• Art. 1 (1) Copyright in a literary or artistic work within the meaning of Article 2 of the Berne Convention shall subsist for the life of the author and for 70 years after his death, irrespective of the date on which the work was lawfully made available to the public.

• Art. 10 (2) The terms of protection provided for in this Directive shall apply to all works and subject-matter which, at the date referred to in paragraph 1, were protected in at least one Member State under national provisions on copyright or related rights (…).

Therefore, the extension of the protection term for a period of 70 years after the death of the author can only be applicable to works still under protection at the time of entry into force of this amending provision. However, at the date of entry into force of Law 8/1996, the Work was not protected in Romania, the copyright protection having expired in 1973.

Hence, the form of Art. 149 para. (3) of Law no. 8/1996 (prior to the 2004 amendment) is contrary to/does not correctly transpose the Directive, a situation which, according to the case law of the CJEU, activates the direct effect of the Directive, the courts being obliged to apply the Directive’s provisions even if national law provides otherwise.

Therefore, we consider that, since 1973, the copyright over the Work has entered the public domain, thus not being transmitted by testamentary succession to Mr. Theodor Nicol.

Irina Vasile

Irina.vasile@lexters.com