On 10/7/98, Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
>
> I generally agree with Bob's analysis, but I also strongly feel that
> Michael is right that the result is absurd (or at least very troubling).
> It seems to me that there is just something so inherently "public"
> about a fireworks display that permitting a copyright owner to restrict
> filming or photography (even for commercial purposes) seems horribly
> intrusive. Unlike a ballet or other type of performance, a fireworks
> display (at least the big, fourth-of-july, "oooh, aaaah" kind that I'm
> thinking of) is part of the physical environment -- it happens outside,
> for all to see, and may be hard to avoid. Restricting the ability to
> replicate such public features of the physical environment seems
> troubling to me. (An analogy might be the exemption in the Act for
> photographing architectural works that are visible to the public.)
> Perhaps this public aspect might inform a fair use analysis?
Many fireworks displays charge admission. It is true that many people can usually see them from without the stadium or area where they are confined, but you could do that (somewhat less easily) with drive-in movies as well. And the replication isn't really of the "physical environment"; one assumes it is of the display itself.
The analogy to the architectural exemption is an interesting one. The exemption is a narrow one, pertaining only to pictures, not other kinds of reproductions or derivative works. Perhaps the legislative history provides some insight into the motivations for such an exemption:
"Similar exceptions are found in many Berne member countries, and serve to balance the interests of authors and the public. Architecture is a public art form and is enjoyed as such. Millions of people visit our cities every year and take back home photographs, posters, and other pictorial representations of prominent works of architecture as a memory of their trip. Additionally, numerous scholarly books on architecture are based on the ability to use photographs of architectural works.
These uses do not interfere with the normal exploitation of architectural works. Given the important public purpose served by these uses and the lack of harm to the copyright owner's market, the Committee chose to provide an exemption, rather than rely on the doctrine of fair use, which requires ad hoc determinations."
(footnotes omitted)
Note the statement about "public art form." That seems to support your position. Do you think pictures of public fireworks displays should be permitted then? In other words, an exemption might make some sense, but it shouldn't necessarily be any broader than the architectural one.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:32 GMT