Warning

Cordon Art B.V. and the M.C. Escher Foundation vs. Jerome Walker d/b/a Rock Walker

United States District Court - Case No. 950863 R

In 1996, the M.C. Escher Company B.V. (formerly known as Cordon Art B.V.) and The M.C. Escher Foundation started legal proceedings against a

Mr. Rock Walker for amongst other issues, copyright infringement.

On September 20, 1996 United States District Judge, Mr. John S. Rhoades

entered the following judgement against Mr. Rock Walker:

Defendant, his agents, servants, representatives, attorneys, employees, successors, assigns, as well as all entities in any way controlled by or participated in by Defendant, and all those in active concert or participation with any of them who receive notice of this Consent Judgement directly or otherwise, are hereby permanently enjoined and restrained anywhere in the world from:

Imitating, copying, using, reproducing any work of M.C. Escher, and/or preparing any derivative work(s) based thereon or authorizing any third party to imitate, copy, use, reproduce any work of M.C. Escher, and/or prepare any derivative work(s) based thereon. Etc.,etc.

The Dispute

It is rare for visual arts copyright cases to end up at court. Even more rare for the trial to be fully conducted and judgment given; roost copyright cases are settled out of court. A recent case tried in the United States has important beneficial effects for European artists whose works may be thought not to be protected by US Copyright Law. It concerned the estate of MC Escher, some of whose works were reproduced and marketed in the US without licence or other authority from the artist's copyright heirs.

The Facts
In 1968 Escher established the 'MC Escher Foundation' in The Netherlands to curate and promote his works via publications, exhibitions, lectures and so on. In 1972 Escher died. Copyright in his works will expire at the end of 2042. In 1984 all copyright in Escher's works was transferred to the ownership of 'Cordon Art BV, a company incorporated in The Netherlands. Cordon Art sells copyright licences authorising the merchandising of Escher's images.

A US merchandiser, Rock Walker, manufactured large numbers of articles which carried representations of 24 different Escher images and marketed them throughout the US. Moreover, Walker retailed these articles under the trading name ‘The MC Escher Museum Foundation'. Neither Cordon Art nor the MC Escher Foundation had authorised the reproduction of the images nor the use of the real Foundation's name.

The Case
Cordon Art BV and the MC Escher Foundation brought proceedings last year against Rock Walker. The case was heard in the US District Court for Southern California (and, for those interested, is reported in 41 U.S.P.Q. 2D, 1224). The plaintiffs alleged copyright infringement of Escher's 24 images, including celebrated works such as 'Drawing Hands', 'Relativity' and 'Waterfall'; trademark infringement and unlawful interference with the plaintiffs business through the encouragement by Walker to Cordon Art's copyright licensees not to pay royalties to them.

The Copyright Issue
Under US Copyright Law between 1909 and 1978, visual works published in the US were required to display a copyright notice or, in certain circumstances, to have been registered for copyright protection purposes. If such works did not carry such a notice, or were not registered, they did not have the protection of US Copyright Law.

However, in 1992 US Copyright Law was amended. The important changes give effect, in US Copyright Law, to the most recent series of intergovernmental trade agreements made under GATT (the General Agreement on Tariffs and Trade). In essence, the changes gave copyright protection in the US back to non-US copyright owners whose works had lost protection through failure to comply with the procedural requirements for copyright notice or registration. Such copyright protection was restored, so long as: the work in question was made by a national of a country which was a signatory to the international Berne Copyright Convention, and the work was still protected by copyright law in the country where copyright was first achieved.

These changes in US Copyright Law were at the heart of the dispute. Walker agreed that the 24 Escher works had lost their copyright protection in the US through failure to display the required copyright notice, and that he was therefore free to reproduce the images without authorisation from the plaintiffs.

One of the most interesting aspects of the case centred on the way the works had been made. The final works in existence today started life as graphic representations made with pencil and paper. Escher then reproduced these images by creating woodcuts or lithography stones, referred to as the 'master blocks', from which he then pulled prints by hand to create the final limited editions.

Ownership of copyright needs to be determined by reference to the making process. The images contained in Escher's original pencil drawings automatically acquired copyright protection in The Netherlands; the further processes described above reproduced these copyright images into different media: the master blocks and finished prints.

Walker argued that Escher's prints had been published in the US without the necessary copyright notices, and were not therefore protected by US Copyright Law. The plaintiffs begged to differ. Their arguments were fascinating: the original graphic drawings and roaster blocks were never published in the US- only the resulting limited edition prints (which Walker had seen published but not bearing copyright notices) - and therefore were still protected by US Copyright Law. Their further or alternative argument (if necessary) was that, even if copyright had been lost through failure to publish a copyright notice, the copyright had been restored in 1992 through amendments to the US Copyright Act 1976, enacted by Congress following the GATT agreement. These were the issues. Walker freely admitted reproducing Escher's works without authority.

The Judgment
The court found in favour of the plaintiffs, holding that Walker's argument failed because the original drawings and master blocks were protected by copyright law at all times in the US. Moreover, the court ruled that, even if copyright had been lost at any time prior to 1992, it had been restored by the amendment to US Copyright Law enacted by Congress following the GATT agreement.

The court's reasons were as follows: the original drawings and roaster blocks were never published in the US, and therefore were protected by US Copyright Law. The final limited edition prints (that were published in the US) were effectively reproductions based almost entirely on the original drawings and master blocks, and were not therefore substantially 'new' works that would have required copyright notices in order to be protected.

As for the amendment to US Copyright Law following the GATT agreement, the court explained that Escher's prints fulfilled the three criteria required by US law after 1992 to prove that any lost copyright had been revived: the works were still protected under Dutch Copyright Law; any copyright lost in the US was because of failure to comply with US procedures (ie no copyright notice) and Escher was at all times a Dutch national entitled to the protection of the Berne Copyright Convention (because The Netherlands is a signatory, as is the US).

Envoi
Thank goodness UK Copyright Law is more straightforward than in the US. We have no legal requirement that works have to carry a copyright notice or have to be registered in order to be protected against copyright infringements. In the UK, copyright is automatically acquired by the artist as soon as he or she makes a work. That said, it is sensible for the artist to endorse upon the work, preferably on its face, margin or bleed: ©; Year of making; initials or name (eg © 1997 Henry Lydiate). Such an endorsement or notice is required in any event for works to be protected outside the UK in countries which have also signed the Berne Copyright Convention (which includes most developed countries in the world).

The case also sets a precedent for European (including UK) artists and their heirs who understood their copyright work to have lost protection against infringement in the US through any previous failure to register or display a copyright notice there. Such 'lost' copyrights now appear to have been restored.

© Henry Lydiate 1997

In California, in the Sacramento area, so-called M.C. Escher woodblock prints/proofs are being offered for sale. These prints are also being offered for sale at eBay by various individuals/dealers. The prints are NOT printed from the original blocks. It concerns the following prints (numbers relate to the prints as depicted in the book: M.C. Escher, His Life and Complete Graphic Work [ published by Abrahams, New York])163; 164; 172; 175; 178; 179; 183; 184; 187; 195; 196; 293; 361; 364; 368; 370; 393; 398 and 430. Auction in Switzerland ? These prints were first offered at eBay in May 1999 by a company called Every Era, Sacramento. The story behind them was that "in about 1958 an auction was held in Switzerland. The purpose was to liquidate the business of a printer who specialized in private press editions. During the course of that auction a single lot consisting of hundreds of reams of blank paper was sold. It was later discovered that buried deep within the masses of blank paper these were these prints we are now offering on Ebay" (end quote). They were selling 325 sets of 19 prints each. We received a set and checked them with the original woodcuts in our possession and found them to be fakes. Their measurements do not match the originals (you can look these up in the book M.C. Escher His Life and Complete Graphic Work and compare them yourself) and they had all been tampered with. They were withdrawn from eBay. Earl M. Washington Then the story changed. They are now being offered for sale by a Mr. Earl M. Washington, http://www.earlmwashington.com who says he is the great-grandson of another Earl M. Washington, who apparently died in 1952. He was either an artist/printmaker/block maker/collector (the story varies). These prints have nothing to do with the original prints made by M.C. Escher during his lifetime. The dimensions are wrong, some prints come from the Emblemata series, three from Scholastica and the rest are odd prints. Some of the Emblemata ones have their top and bottom text missing. Why would M.C. Escher grant permission for anyone to make a private press printing of prints that already appeared in two printings? Why would he leave out essential texts which were cut into the same block as the picture? Why include an invitation to an exhibition in it when this invitation only has text? We have access to Mr. Escher's private administration and his diaries. Nowhere can be found that an additional printing was scheduled, not in Switzerland and not in the USA. Mr. Escher was very meticulous and wrote everything down. Mr. Washington's name appears nowhere and neither do these fake prints. Most importantly, the dimensions are wrong!		Copyright infringement We take infringement of our copyright very seriously and will take the necessary legal action where necessary, as you can see below: Cordon Art B.V. and the M.C. Escher Foundation vs. Jerome Walker d/b/a Rock Walker United States District Court - Case No. 950863 R In 1996, the M.C. Escher Company B.V. (formerly known as Cordon Art B.V.) and The M.C. Escher Foundation started legal proceedings against a Mr. Rock Walker for amongst other issues, copyright infringement. On September 20, 1996 United States District Judge, Mr. John S. Rhoades entered the following judgement against Mr. Rock Walker: Defendant, his agents, servants, representatives, attorneys, employees, successors, assigns, as well as all entities in any way controlled by or participated in by Defendant, and all those in active concert or participation with any of them who receive notice of this Consent Judgement directly or otherwise, are hereby permanently enjoined and restrained anywhere in the world from: Imitating, copying, using, reproducing any work of M.C. Escher, and/or preparing any derivative work(s) based thereon or authorizing any third party to imitate, copy, use, reproduce any work of M.C. Escher, and/or prepare any derivative work(s) based thereon. Etc.,etc. The Dispute It is rare for visual arts copyright cases to end up at court. Even more rare for the trial to be fully conducted and judgment given; roost copyright cases are settled out of court. A recent case tried in the United States has important beneficial effects for European artists whose works may be thought not to be protected by US Copyright Law. It concerned the estate of MC Escher, some of whose works were reproduced and marketed in the US without licence or other authority from the artist's copyright heirs. The Facts In 1968 Escher established the 'MC Escher Foundation' in The Netherlands to curate and promote his works via publications, exhibitions, lectures and so on. In 1972 Escher died. Copyright in his works will expire at the end of 2042. In 1984 all copyright in Escher's works was transferred to the ownership of 'Cordon Art BV, a company incorporated in The Netherlands. Cordon Art sells copyright licences authorising the merchandising of Escher's images. A US merchandiser, Rock Walker, manufactured large numbers of articles which carried representations of 24 different Escher images and marketed them throughout the US. Moreover, Walker retailed these articles under the trading name ‘The MC Escher Museum Foundation'. Neither Cordon Art nor the MC Escher Foundation had authorised the reproduction of the images nor the use of the real Foundation's name. The Case Cordon Art BV and the MC Escher Foundation brought proceedings last year against Rock Walker. The case was heard in the US District Court for Southern California (and, for those interested, is reported in 41 U.S.P.Q. 2D, 1224). The plaintiffs alleged copyright infringement of Escher's 24 images, including celebrated works such as 'Drawing Hands', 'Relativity' and 'Waterfall'; trademark infringement and unlawful interference with the plaintiffs business through the encouragement by Walker to Cordon Art's copyright licensees not to pay royalties to them. The Copyright Issue Under US Copyright Law between 1909 and 1978, visual works published in the US were required to display a copyright notice or, in certain circumstances, to have been registered for copyright protection purposes. If such works did not carry such a notice, or were not registered, they did not have the protection of US Copyright Law. However, in 1992 US Copyright Law was amended. The important changes give effect, in US Copyright Law, to the most recent series of intergovernmental trade agreements made under GATT (the General Agreement on Tariffs and Trade). In essence, the changes gave copyright protection in the US back to non-US copyright owners whose works had lost protection through failure to comply with the procedural requirements for copyright notice or registration. Such copyright protection was restored, so long as: the work in question was made by a national of a country which was a signatory to the international Berne Copyright Convention, and the work was still protected by copyright law in the country where copyright was first achieved. These changes in US Copyright Law were at the heart of the dispute. Walker agreed that the 24 Escher works had lost their copyright protection in the US through failure to display the required copyright notice, and that he was therefore free to reproduce the images without authorisation from the plaintiffs. One of the most interesting aspects of the case centred on the way the works had been made. The final works in existence today started life as graphic representations made with pencil and paper. Escher then reproduced these images by creating woodcuts or lithography stones, referred to as the 'master blocks', from which he then pulled prints by hand to create the final limited editions. Ownership of copyright needs to be determined by reference to the making process. The images contained in Escher's original pencil drawings automatically acquired copyright protection in The Netherlands; the further processes described above reproduced these copyright images into different media: the master blocks and finished prints. Walker argued that Escher's prints had been published in the US without the necessary copyright notices, and were not therefore protected by US Copyright Law. The plaintiffs begged to differ. Their arguments were fascinating: the original graphic drawings and roaster blocks were never published in the US- only the resulting limited edition prints (which Walker had seen published but not bearing copyright notices) - and therefore were still protected by US Copyright Law. Their further or alternative argument (if necessary) was that, even if copyright had been lost through failure to publish a copyright notice, the copyright had been restored in 1992 through amendments to the US Copyright Act 1976, enacted by Congress following the GATT agreement. These were the issues. Walker freely admitted reproducing Escher's works without authority. The Judgment The court found in favour of the plaintiffs, holding that Walker's argument failed because the original drawings and master blocks were protected by copyright law at all times in the US. Moreover, the court ruled that, even if copyright had been lost at any time prior to 1992, it had been restored by the amendment to US Copyright Law enacted by Congress following the GATT agreement. The court's reasons were as follows: the original drawings and roaster blocks were never published in the US, and therefore were protected by US Copyright Law. The final limited edition prints (that were published in the US) were effectively reproductions based almost entirely on the original drawings and master blocks, and were not therefore substantially 'new' works that would have required copyright notices in order to be protected. As for the amendment to US Copyright Law following the GATT agreement, the court explained that Escher's prints fulfilled the three criteria required by US law after 1992 to prove that any lost copyright had been revived: the works were still protected under Dutch Copyright Law; any copyright lost in the US was because of failure to comply with US procedures (ie no copyright notice) and Escher was at all times a Dutch national entitled to the protection of the Berne Copyright Convention (because The Netherlands is a signatory, as is the US). Envoi Thank goodness UK Copyright Law is more straightforward than in the US. We have no legal requirement that works have to carry a copyright notice or have to be registered in order to be protected against copyright infringements. In the UK, copyright is automatically acquired by the artist as soon as he or she makes a work. That said, it is sensible for the artist to endorse upon the work, preferably on its face, margin or bleed: ©; Year of making; initials or name (eg © 1997 Henry Lydiate). Such an endorsement or notice is required in any event for works to be protected outside the UK in countries which have also signed the Berne Copyright Convention (which includes most developed countries in the world). The case also sets a precedent for European (including UK) artists and their heirs who understood their copyright work to have lost protection against infringement in the US through any previous failure to register or display a copyright notice there. Such 'lost' copyrights now appear to have been restored. © Henry Lydiate 1997