First, shouldn't we give the land a catchy name like
Black Acre or such to maintain the LS exam question
style?
That is not equally clear to me. It seems that the painting could be evidence in a trial for trespass. Possibly, there could be a case for unjust enrichment depending on state law, but the damages would be monetary.
>
>
>
> 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?
Again, the painting could be used as evidence of the theft, but most state laws would be aimed at restoring the original owner to his pre-crime status and then punishing the criminal for the crime. Lately there have been laws put into place to prevent criminals from profiting from their crimes, but those are typically applied to deathrow autobiographies.
Again, an unjust enrichment claim could be tried, but this is a stretch. What if I steal a cup of coffe so that I can invest my last dollar in a lotto ticket? Does the coffee vendor get the Lotto winnings? No, he gets restitution for the cup of coffee and I get a slap on the wrist for misdemeanor theft - not that I care because I just won the Lottery!
> 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?
>
>
Not that I can think of.
>
> 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.
Despite the pleading, I don't think this case was really about the ownership of the photos, but their use and publication in violation of a valid contract. Yoko didn't care who owned them, just that they not be publicized.
> 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.
>
>
Interesting remedy, but here it seems the remedey fits the wrongdoing better than your examples above. Not having read the case, I assume that but for the usurption the plaintiff would have drafted and profitted from the textbook.
In your examples above, without Able there would not have been a painting. Baker would have his untresspassed land and his paint and brushes, but not the painting. Why should he have the painting as a part of the rememdy for the wrongdoings?
One final way to look at this, if I was Able and the painting was therefore worthless because I truely lack any artistic ability, would Baker settle for a transfer of copyright in lieu of damages?
>
> Any references to relevant cases or commentary
> discussing this issue
> would be appreciated.
>
Sorry, I'm just pontificating as I soak up my morning caffeine. Nothing useful.
Keith
>
>
> Best regards,
>
>
>
> Todd Owers
>
>
>
>
>
>
>
>
>
>
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