Re: Greetings, I also am not a lawyer

On Wed, 29 Oct 1997, Michael Bernstein <michael[_at_]cascadilla.com> wrote:
>
> David F. Crosby <dfc[_at_]lappinkusmer.com> wrote:
> >
> > Yes, the museum does have a limited display right (the one I alluded to
> > below) but note for example that 109(d) limits what the museum can do
> > with it, such as loan it to another museum. So if the museum wants to
> > put the work "on tour", it has to get permission.
> >
> > On another note, could the copyright owner compel the owner of the copy
> > to present the copy for copying? i.e. could I get an court order
> > requiring the museum to provide access to the copy for copying - for a
> > reasonable fee? An easement to the copyright property - the right (to
> > access) to make copies of a copy owned by another?
>
> Person A buys the painting, and sells it to Person B. If you could
> compel the museum to provide access in the above example, could you
> compel Person A to tell you who Person B is, in the name of trying to
> get access to the work?
>
> Many collectors value their privacy (and that's not just the ones who
> buy stolen artwork). They'd be rather unhappy if copyright owners had
> the right to demand access to the work, unless there is a way to draw a
> distinction between demanding access and demanding information which is
> necessary to gain access.
>
> However, as far as the museum example goes, the museum has the right to
> destroy the painting under the first sale doctrine. If they have that
> right, it's hard to imagine that they don't have the right to not
> destroy it, and keep it locked in storage instead. So allowing the
> copyright owner to compel access would seem to be an abrogation of the
> physical owner's rights under the first sale doctrine.

I am not a lawyer either (yet) but it's my understanding that the museum would probably not have the right to destroy the painting under the first sale doctrine. Any painting worthy of being kept by a museum would almost certainly be considered a work of visual art, and under 106A(a)(3) the author of a work of visual art has the right "to prevent any destruction of a work of recognized stature," as well as the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation." Under 106A(e), moreover, these rights may not be transferred, and may only be waived by express agreement in a written instrument signed by the author.

Maureen Cohen
<cohenm1[_at_]bulldog.georgetown.edu> Received on Thu Oct 30 1997 - 16:45:05 GMT