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

From: John T. Mitchell <mitchell[_at_]interactionlaw.com>
Date: Thu, 28 Apr 2005 14:35:00 -0400

If I sit in your pasture for a couple of hours as a trespasser, I can be sued for trespassing. If during those two hours I created a work of authorship, I don¹t see how the work of authorship can be tainted, whether the work was a poem inspired by the beauty of your pasture or a painting of your non-copyrighted pasture. About the only way I can envision a taint would be if, by trespassing onto your pasture, I was able to see and reproduce your work of authorship, in which case normal copyright law provides enough relief without resorting to trespass law.

By reverse analogy, if I am licensed to reproduce one copy of a work, it matters not whether I made the copy from an infringing original, a stolen original, or an original I accessed by trespassing onto your pasture ‹ in any case, the reproduction is non-infringing.

Now, if Baker charges a fee for artists to gain access to Baker¹s secluded lake, and Able¹s trespass in effect allows him to paint it without paying the price of admission, the remedy would seem to be sufficient if Able has to fork over the price of admission ‹ no copyright issues need arise unless the price of admission includes a copyright interest in the works created.

Am I missing something by such simplification?

John

---

John T. Mitchell
http://interactionlaw.com
1-202-415-9213

On 4/27/05 6:15 PM, "Theodora Michaels" <TMICHAELS[_at_]carlinamerica.com> wrote:

> 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/RDpcT3BpbnNcT1BOXDAzLTc5NTJfb3BuLnBk
> Zg==/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/RDpcT3BpbnNcT1BOXDAzLTc5NTJfY29uLnBk
> Zg==/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 Baker¹s 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
> Able¹s 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 author¹s trespass (or
> otherwise improper conduct ­ in the example above, suppose that Able did not
> trespass on Baker¹s 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 Able¹s 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 husband¹s 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 author¹s 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 - 22:35:00 GMT