Re: Working Group Report -- first electronic rights?

> Mark Lemley writes:
> >
> > True, true. But it seems to me that the owner of the public domain
> > painting in this discussion wants more. He would like to be able not
> > just to hide the painting away, but to put it on public display, *and
> > still maintain control over the copies that are made of it.* This he
> > can't do with self-help. It seems to me that the question is whether
> > we give him copyright (or some equivalent right) as a weapon to help
> > him maintain such control.
>
> Hmmm, as I understood the original hypo, the owner didn't want
> the protection of copyright. He simply wanted the right to not let
> in people who use cameras into his museum. That's just his basic
> right over his own private property.
>
> Now of course much depends on his remedy. If, for instance, he
> just puts up a sign that says "No Cameras In Museum," his rights
> might be only to throw out photographers when they identify
> themselves (this alone may be a fairly significant right, since I
> imagine a really high-quality photograph would require more than just
> whipping out your camera). If he gets everyone to agree to a
> contract (which may or may not require an explicit assent on their
> part, but probably would), then perhaps he can sue them for damages.
> I doubt, though, that he could enjoin distribution of the photograph,
> something he could do under copyright law.
>
> But in any event, I don't see reason to believe that copyright law
> would preempt tangible property law or contract law in this context.
>
> -- Eugene Volokh, UCLA Law
> <volokh[_at_]law.ucla.edu>

Which, in fact, is what most museums do. They will normally allow patrons to bring in tourist-type cameras without flash, but anyone using a tripod, lights, or any of the normal professional gear, has to get special permission.

The real problem with this thread is that you guys are too young. A lot of stuff in museums is pre-1976 and was acquired under common-law copyright doctrines so that the purchasers of the work also acquired the common law copyright, which gave them the right to control copying. Several museums have since gotten in trouble because they didn't know the laws changed and assumed that they had acquired the right to reproduction in post 78 acquisitions when they bought the physical object.

Incidently, many artists now who have enough market clout are using sales or gift contracts that retain the right of access to the object to excercise the artist's copyright and to make copies for the reproduction market. Some of them also reserve the right to borrow the object for limited periods for shows or exhibitions.

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Buford C. Terrell                                      1303 San Jacinto
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