Re: State Susceptibility to Suit for Copyright and Patent Infringement

From: Dan L Burk <BURKDANL[_at_]shu.edu>
Date: Mon, 03 Aug 1998 23:07:58 -0400

On 7/31/98, Christine L. Sundt <csundt[_at_]oregon.uoregon.edu> wrote:
>
> Let's remember that when we talk about pre-modern art in the context
> of copyright we are often referring to the image of the artwork --
> the photograph, slide, transparency, reproduction, scan (digital
> file) -- so copyright is relevant even though the underlying work is
> in the public domain. Access to the artwork is often controlled
> under property rights and it may be that the owner of the property
> is the only holder of a legitimate copyright-protected image of the
> artwork.

The problem with this analysis (similar to Pat Sloane's) is the rule of the Sega and Nintendo cases -- once I have posession of a copy, it is fair use for me to make what would otherwise be an infringing copy in order to extract the underlying public domian elements. So I may not be able to reproduce the museum's image without their authorization, but I probably *can* scan it without their authorization to make my own image.

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Dan L. Burk
Seton Hall University
burkdanl[_at_]shu.edu

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Received on Tue Aug 04 1998 - 03:03:26 GMT