Re: R.M.S. Titanic

Tyler T. Ochoa writes...
>
> 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?

Taking your ranch/waterfall example, suppose a photographer rents a helicopter and has the chopper fly in front of the waterfall, never touching down on your property.

A spectacular photo is taken and published as a pictorial poster, with $30,000 retail in sales each year for the next five years. As the owner of the property, do you assert a right to any of the revenue generated from the sale of the poster depicting the waterfall located on your property?

If you don't own the air space above your property, then it would seem that you wouldn't own the sea either. Even if you "owned" the Titanic, how could you raise a legal barrier to someone else photographing it?

Leo Smith
Capital Ventures Group, LLC.
860 668 4000
<barter[_at_]ntplx.net> Received on Fri Mar 27 1998 - 03:13:57 GMT