Re: droit de suite

On 04/01/2000, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> I think the underlying issue is that you want to reduce any work
> of art to no more than the meanest commodity, a mere case of
> mayonnaise. Buy the Mona Lisa and it's your your yours. By
> your reasoning you now have the "right" to destroy it, alter it,
> change the signature to your own, deface it, forbid others to see
> it, forbid photos being taken or reproduced, efface all memory
> that it had ever existed.

Under current "moral rights" laws in the U.S., the owner of an original work of art (the painting itself, not the copyright) generally does not have the right to destroy it, alter it, change the signature, or deface it (at least for the duration of the copyright). But the owner of a painting DOES currently have the legal right to "forbid others to see it, [and] forbid photos being taken or reproduced."

What happens if the copyright holder needs access to the original in order to be able to reproduce it? There's no statute that says the owner of the painting has to give the copyright owner access. I think a reasonable right of access should be implied; but I've only found one case that says so.

What happens after life plus 70 is up? Under current U.S. law, there is nothing to prevent the owner of the painting from doing any of the above things. That is another reason why I prefer characterizing the public domain as common ownership [of the copyright] rather than the absence of ownership. If the public owns the "right" to reproduce the painting, then it can impose some reasonable conditions on the ownership of the original, such as a prohibition on its destruction.

Should a reasonable right of access be implied? Perhaps; but I recognize there are difficulties in reaching a workable solution that would not be too much of an imposition on the owner. Perhaps the better solution is to simply to say that any terms and conditions imposed as a condition of access are invalid and unenforceable.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Tue Apr 04 2000 - 18:55:15 GMT