Re: R.M.S. Titanic

     The following hypothetical may help clarify my explanation. Suppose I own a big ranch in Montana with a spectacular waterfall in the middle of the property. The waterfall isn't visible from the boundary, so anyone who wants to take a picture of it has to come onto my land. There is little doubt that I can fence off the land to prevent trespassers, and condition access to the property in any way I want. I can invite visitors to see the waterfall, but prohibit the use of cameras. I can invite photographers to photograph the waterfall, but condition their right to do so on assignment of the copyright. I can probably even get an injunction against anyone trying to enter the land to take a photograph (but that might be considered an unlawful prior restraint).

     The tough question is: if someone violates the prohibition on cameras and takes a photograph anyway, or if someone trespasses onto my land and takes a photograph, can I claim a copyright in the photograph? Can I claim loss of copyright income as damages for trespass or breach of contract? Or would a court hold the contract was an invalid restraint of trade, and that damages for trespass do not include intellectual property? I imagine different judges would view it very differently. [If there was an express written agreement to assign the copyright, however, I'm pretty sure it would be enforced.]

     That's what the salvors of the Titanic are trying to do: they are trying to use the established property right of salvage to require authorization and impose conditions upon others who visit the wreck, so that they can control the copyright in any photographs that are taken. Anyone want to rent a submarine, take some photos, and try to test it in court?

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Wed Mar 25 1998 - 20:22:21 GMT