Publishing an Infringement

The needs of scholarship and the rights of image owners sometimes come into conflict. Here is a problem which recently crossed my desk:

A scholar working on a paper about the commercialization of art exhibits wishes to publish examples of some of the promotional materials associated with a recent blockbuster. One image, incorporated into the front of a Museum A's Calendar of Events, includes a picture owned by Museum B. Museum B refuses permission to reproduce the calendar's underlying work (which it owns) because Museum A never requested permission to reproduce it -- they infringed Museum B's claimed copyright in the reproductive photo.

Without claiming fair use, and accepting a museum's copyright in its reproductive photographs, how does one go about reproducing the alleged infringing work? If Museum A gives permission to reproduce the Calendar cover, is the scholar responsible for the 2nd generation infringement, or does responsibility go back to the original culprit (Museum A)? Or is this an unreproducible work?

Robert Baron
rabaron[_at_]pipeline.com Received on Wed May 28 1997 - 14:53:31 GMT