Re: Divestiture of copyright as remedy for author's trespass to create the work

Not exactly on point, but you might want to see NXIVM CORPORATION and FIRST PRINCIPLES, INC. v. THE ROSS INSTITUTE, RICK ROSS also known as RICKY ROSS, JOHN HOCHMAN, and STEPHANIE FRANCO (sorry for the all-caps, I'm copying-and-pasting from the opinion), in which the court held that quotes can still be fair use even if the copy being quoted from was obtained unlawfully.
The decision is here:
http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAzLTc5NTJfb3BuLnBkZg==/03-7952_opn.pdf#xml=http://10.213.23.111:81/isysquery/irla459/4/hilite  

And the concurring opinion is here:
http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAzLTc5NTJfY29uLnBkZg==/03-7952_con.pdf#xml=http://10.213.23.111:81/isysquery/irla459/3/hilite  

Thea

>>> owers[_at_]carverdarden.com 04/27/05 4:00 PM >>>

Hypothetical: Able trespasses on Baker's land to access a beautiful, secluded lake and paints a picture of the lake. It seems clear that, as the author of the painting, Able owns the copyright. However, it seems equally clear that Able's trespass in creating the painting should, in some way, taint his copyright ownership or limit his ability to profit from the painting. Is anyone aware of authority discussing the effect of an author's trespass (or otherwise improper conduct * in the example above, suppose that Able did not trespass on Baker's land but instead stole the brushes, paint, and canvas used to paint the picture) in creating the work have on the resulting copyright ownership? For example, would Able's improper conduct operate to divest him of copyright ownership? Would Baker be entitled to a compulsory license to display the painting? I am aware of the Lennon v. Seaman case, 63 F. Supp.2d 428 (S.D.N.Y. 1999), in which Yoko Ono sued her and her late husband's former personal assistant who published photographs of the Lennons he took while in their employ, allegedly in violation of a confidentiality agreement. The plaintiff asserted, inter alia, that she was the rightful owner of the unauthorized photographs; however, the case settled without judicial resolution of that particular issue. I am also aware of the Robinson v. R&R Publishing case, 943 F. Supp. 18 (D.D.C. 1996), in which an author was divested of copyright ownership in a medical textbook * or, at least, deemed to hold the copyright in trust for the defendant * as a remedy for the author's usurpation of a corporate opportunity belonging to the defendant. Any references to relevant cases or commentary discussing this issue would be appreciated. Best regards, Todd Owers   Received on Thu Apr 28 2005 - 02:15:00 GMT