More on the Bettman Archive

I would like to introduce a new element into the discussion on the Bill Gates purchase of the Bettman Archive. To date the discussion has focused on copyright almost exclusively (with the exception of Howard Knopf's interesting observations relating to anti-trust law). The rights of Bill Gates have been explored. The rights of the users of public domain works have also been discussed. I would like to talk about the rights (if any) of the people who find themselves in the images which Bettman sold to Bill Gates. When Bill Gates purchased the Bettman Archive one of the things which he acquired was a large collection of photographs. Some of these photographs are in the public domain and are of people who are still alive. I even have a very real example.

Bobby Hull is a very famous Canadian. For those of you who do not know why he is famous, he is one of the best hockey players who ever played professional hockey and in Canada that means something! Bobby Hull is now over 60 years old. There is a very famous photographs of Bobby as a young boy holding a pitch fork. The photograph is now in the public domain. As the photograph is famous it is available from a wide variety of sources. Assume for discussion that the original is deposited in an Archive (without any restrictions in a donor agreement). The Archive has just sold this famous photograph to Bill Gates. Bobby Hull finds this photograph containing his image being used without his authorization. All kinds of examples come to mind:

1. For commercial purposes to advertise sporting equipment;
2. For good things like promoting amateur hockey;
3. For bad things like in association with a new "couch potato" club which promotes the notion that hockey is bad for your health.

I am listing these examples to solicit your views on whether the context of the use has anything to do with the fact that an unauthorized use of the image of a living person is being used first, without permission, and second, in a context to which that person may violently object. (Bobby Hull hates couch potatoes).

Bobby Hull has come to us asking what his legal rights are against 1. the Archive which sold the photograph; 2. Bill Gates who is making the photograph widely available in a CD-ROM

    product;
3. those who use the CD-ROM to do those things I set out above such as

    promote amateur hockey, support the new couch potato club and to     advertise sporting eqipment.

I direct these questions to Canadians in particular because I do have a real client. However, I would be very interested in what the law is in other countries on these issues. How would you advise Bobby Hull?

Wanda Noel
Ottawa, Canada

<bj538[_at_]freenet.carleton.ca>

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