Re: Intellectual Property and Classical Works

Scott,

Thanks for your informative and well-considered response!

[much snipped]

On Apr 28, 2004, at 11:01 AM, Scott Vanderbilt wrote:

> At 05:29 AM 4/28/2004, Patrick T Rourke wrote:
>
> >  and I managed to acquire the Venus de Milo for the price of a cup
> > of copy, [sic]

> <http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm>
>
> Note that the case is not exactly on point with the facts that (I
> believe)
> prompted this thread, i.e., the right to reproduce one's own
> photographs of
> public domain works. Also note that the case covers two-dimensional
> works
> of art only. So in Patrick's case of the Venus de Milo, he would be
> within
> his rights to prohibit reproductions of his own photographs. On the
> other
> hand, if it was the Mona Lisa he had picked up for a "cup of copy", he
> would be out of luck.

Good heavens, I wrote "cup of copy?" Sorry about that. That's what
happens when you try to do too many things at once (story of my life).

> So the issue here is whether the license under which a museum permits
> one
> entry and which further prohibits the taking of photographs can be
> enforced
> to prevent reproduction of photographs taken in violation of it. Well,
> as a
> threshold matter, there's little question that the license cannot
> affect
> the photographer's underlying ownership of the photographs. Copyright
> cannot be transferred in the absence of a written instrument. The
> implicit
> licenses one agrees to when one enters a museum or purchases a ticket
> would
> probably not qualify as a written assignment of copyright. Therefore,
> the
> copyright will remain with the photographer, whether permitted or not.
> However, the contract in the license is certainly valid nonetheless,
> and
> conceivably the breach of a contract to not reproduce photographs one
> has
> taken of the museums's objects may very well be enforceable, and if
> damages
> can be proven, the museum very likely has a potential remedy, even if
> it is
> not founded on the laws of copyright.

What damages could be proven outside of copyright?  (That *isn't* a
rhetorical question, by the way.)

> Bottom line: if you are contemplating reproducing images of an object
> taken
> in a museum that prohibits photography, one should weigh the costs of
> consulting a competent practitioner of intellectual property law (and
> the
> potential expenses of defending a lawsuit) versus the costs of just
> licensing the museum's images, which are in most cases going to be
> better
> than one's own photographs. And, of course, as Bridgeman teaches us, if
> it's a two-dimensional work of art and it's in the United States, just
> buy
> the CD-ROM from Corel.

Excellent point, thanks again!

PTR