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

From: Michael Graham <mgraham[_at_]marshallip.com>
Date: Thu, 28 Apr 2005 14:35:00 -0400

I cannot help but think that the Confidentiality Agreement and Unfair Competition bases for the two cited cases make them irrelevant as to the private lake hypo. While Baker would have a trespass action, and might claim all or a portion of Able's profits by reason of the trespass (e.g. sale of the painting), there would have to be "something more" for Able's acts to give Baker grounds to negate or be awarded copyright in the painting.  

Michael R. Graham

	-----Original Message-----
	From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Todd Owers
	Sent: Wednesday, April 27, 2005 3:00 PM
	To: CNI-COPYRIGHT -- Copyright & Intellectual Property
	Subject: [CNI-(C)] [CNI-(C)] Divestiture of copyright as remedy

for author's trespass to create the work                  

        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                                        

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Received on Thu Apr 28 2005 - 22:35:00 GMT