Re: How can the Bettmann Arc

> RE: How can the Bettmann Archive possibly work (or be legal) ?
>
> Bettman does not charge for the copyright use but for the physical
> ownership of the photo or other work. They are the preserver and
> keeper of the archive and therefore in order to maintain the works
> for access and use in another work they charge for that use. They
> also do searches for you of their archives and this can be invaluable
> to a researcher for a publication or documentary.
>
> Elaine Coolbrith
>

Several people have made this same point, and it seems right to me. But one question lingers . . . why exactly does Bill Gates want to own this archive? Maybe it is because he can't think of anything else he hasn't already bought. If so, fine.

But it seems more likely to me that Gates intends to digitize these works and, having done so, try to exert some control not just over the originals, but over the digitized versions as well. That seems more problematic from a copyright standpoint. Right? Or is there some claim to copyright residing in the "creative" work of running the art through a scanner?

Even if copyright won't work, perhaps Gates can try to protect his digitized copies with some sort of mass-market contract (say, a shrinkwrap license?). But that protection doesn't seem terribly robust, even if we assume it is legal. All it takes is one buyer to breach the contract and anonymously post the material onto the Internet, and soon everyone can have free copies of the art. The poster may be liable for breach of contract, if she can be found, but presumably everyone else is free to copy the digitized work at that point.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu Received on Mon Oct 23 1995 - 15:33:55 GMT