Re: Haworth Press Journals

Trotter Hardy Writes:
>
> Good points. The flip side of the argument is this: Could a person
> produce a painting and sell it (and the copyright) to a buyer on
> condition that the buyer not write anything critical about it? I
> use "a painting" as the example because I am imagining a face-to-face
> meeting, equal bargaining strength, a single sale.
>
> I just can't find anything wrong in that scenario. Why should an
> artist not be able to impose a condition on a sale? If the buyer
> finds the restriction too much to bear, well, the buyer need not buy.
> The artist can't make any money without selling the work, so onerous
> restrictions on a sale are self-defeating. If the buyer is in the
> business of criticizing works, then the buyer will CERTAINLY not buy
> under such conditions.

Without going too far afield one should note that the common law has historicly placed constraints on the way in which sellers may restrict the sale and use of property. For example, unreasonable restrainsts on alienation is a staple for most first year property classes. Let us not forget the hours spent working through the rule against perpetuities. Whether such a restriction on criticism would be deemed so unreasonable as to trigger invalidation is problematic for reasons you suggest later in your reply.

> And if the work isn't sold, then the public has no need of criticism
> of the work. Indeed, I suppose that artists who deliberately choose
> to keep their work private ("in the privacy of their own home"), have
> some sort of right of privacy regarding their creations: public
> criticism would imply previous acts of access that would give rise to
> an invasion of privacy claim.

There common law precedent in the trade secret area where information is imparted on the condition that the person receiving the information agrees not to disclose - a common practice in the computer world.

> Yet, your argument is persuasive as well. So maybe the difference,
> as I have mentioned before, is that what troubles us about the book
> scenario is the contract--not the copyright-- issue: when a book is
> mass produced, is there really a "contract" between buyer and
> publisher? The argument for a real (enforceable) contract seems
> fairly weak.
>
> The other point to make is this: when there is an actual contract,
> even when wider publication than a single sale is involved, the
> market will almost certainly prevent "no criticism" contracts. That
> is, suppose the world were such that an author could say to a
> publisher: "I will license my book for your publication, on condition
> that you do not criticize it, AND that you impose a similar
> restriction on all buyers of the book."

I agree with this analysis up to a point. My concern is less with contracts of no criticism than with contracts which enlarge the scope of copyright protection in ways that may not further my notions of the utilitarian concept of copyright. Obviously, one can not bargain to extend copyright beyond the statute period - one might say that fair use furthers certain utilitarian objectives within the copyright schema unrelated to contract.

  Don Berman --  

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