Re: Intellectual Property and Classical Works

At 01:24 PM 4/28/2004, Patrick T Rourke wrote:

> > 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.)

Hmmm. Well, all of my legal treatises are locked away at the moment, and
probably dangerously out-of-date, so I'm just winging it here. The first
thing you need to bear in mind is that the notion of damages is a
consideration wholly distinct from that of liability. The law of copyright,
being statutory, contemplates matters of both liability and remedies. The
former deals with the sorts of rights that copyright recognizes and what
one may and may not do with copyrighted material. The latter encompasses
damages and other equitable remedies (usually injunctions, and non-monetary
things like that) that one may recover in the case that liability is
established.

If one establishes a violation of statutory copyright, the consequence is
that one can typically avail oneself of the remedies provided under the
copyright statutes. The beauty of this (for the plaintiff) is that the
damages are explicitly stated in the copyright statutes, and thus proof is
much easier. At one time (as I said, my knowledge here is rusty), statutory
infringements of copyright permitted the plaintiff to get $10,000 per
violation, regardless of whether that amount corresponded to the
plaintiff's actual damages.

If on the other hand, one had to rely only on the law of contract as a
basis of liability (or another theory that just occurred to me - that of
the law of trespass), then one would have to prove actual damages. In the
hypothetical case of our museum bereft of photographic images of its public
domain holdings, they would probably have to fall back on income lost as a
result of the purloined images which can be exceedingly difficult to
establish. There may be other applicable bases for recovery of damages
which escape my recollection at the moment. But as a matter of proof, proof
of damages is much harder, which is why one would always prefer to have the
copyright arrow in one's quiver.

I should add the caveat that the foregoing should not under any
circumstances be construed as legal advice, and that it is merely the
musings of a recovering attorney who long ago hung up his shingle in favor
of trying to make an honest living. So please don't rely on anything I've said.