Re: R.M.S. Titanic

Leo Smith <barter[_at_]ntplx.net> wrote:
>
> 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?

     First of all, as a matter of property law, my understanding is that you DO own the air above your land (at least to a certain height), and that you DO have a right to exclude others from it, subject to whatever regulation the government decides to impose (such as zoning). So there is still the possibility that you could sue the photographer and the helicopter pilot for trespass.

     But that still doesn't answer the question. The question in the land-based example is: if someone takes a photograph by means of violating your right of property, can you claim royalties in the result? My own feeling is that the answer should be no, and I think most courts would agree; but I can imagine that a court might not agree in egregious circumstances. After all, a decision that a photographer could continue to exploit a photograph notwithstanding his/her trespass might leave one without an effective incentive to keep photographers off of scenic land that is in private hands. But it would create a conflict with the copyright act, which gives initial ownership to the "author" of the work.

     I agree with everyone who remarked that the salvors of the Titanic at most own the boat and artifacts, not the sea floor and ocean around it. That is certainly a distinguishing factor from the waterfall example. But it returns me to my initial reply, which pointed out that unlike the usual type of personal property, which can be withheld from public view, you can't exactly remove the Titanic to a bank vault. So the question becomes: if we agree that the owner of personal property has the right to keep his or her property out of the public eye, should we grant a similar right to the owners of personal property who desire to do so, but who are presently unable to sequester their property?

      Finally, please don't shoot the messenger. I agree that we ought not to give such a right to the salvors; I'm just trying to think of some plausible arguments for their point of view.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Tue Mar 31 1998 - 03:07:00 GMT