On 8/4/98, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> On 98-08-04, Dan L. Burk <burkdanl[_at_]shu.edu> write:
> >
> > Yes, but how is that relevant to the question that was posed?
> > Once the image is off the premises, there is very little that the
> > museum can do to control third party usage of the public domain
> > elements in the image.
>
> Recall that in many or most cases, the only way to get "the image...
> off the premises" is to buy a photograph from the museum that the
> museum photography department has taken, and in which they hold a
> copyright.
Yes -- but once you have the photograph off the premises, what then? I suppose that the museum can try to restrict your use of it via a UCC2b type license, but that is probably only enforceable, if at all, against you. Ray Nimmer notwithstanding, I don't think covenants run with photographs.
> Why does little old me comply with the law, when you seem to be
> implying it's unenforceable?
Probably because it's more convenient to do so? The Sega and Nintendo holdings do for copyright what the reverse engineering exception does for trade secrecy: puts an effective cap on the price the owner of the IP can charge for a license. If s/he charges more than it would cost to reverse engineer it, the prospective licensee will do that rather than take a license.
So if the museum makes its product cheap enough and conveneint enough, you may not bother to get the reproduction some other way.
> 1) If I do a book with 50 reproductions of famous paintings owned by
> museums, no publisher will publish it without seeing permissions.
> They don't want to expose themselves to liabilitiy. Nor do I.
In fact, my experience suggests that this is not necessarily true if you look a little harder. Try Southeast Asia.
> 2) I need the good will of museums, because I need to use their
> facilities. Beat one museum out of a petty fee for using their
> photograph, and I risk losing my credibility with all of them. I'd
> rather be regarded as an upfront person. Besides, some of them do
> try to be reasonable. They won't charge if the photo is going in an
> article for an academic journal. They will charge if it's something
> like a book that I stand to make money from if the book is sold.
Now we get to the *real* reason for asking permission, which has nothing to do with copyright, and everything to do with reputational capital. This is a wonderful response. John Perry Barlow will be so proud of you!
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