Re: Preemption

Here is a slightly different question based on Steve Jamar's <sjamar[_at_]law.howard.edu> hypothetical. He wrote:
>
> One particular question with some nice arguments on both sides is the
> one embedded in the museum hypo. One person owns a painting which is
> in the public domain. It is not a violation of the copyright act for
> anyone to copy it and distribute those copies howsoever the person
> wants. That is what public domain means.
>
> But, the owner wants to get more economic value from it so the owner
> limits access to it. This, it seems, is legal - just an incident of
> owning the physical property (as distinct from owning the copyright).
> And that owner can limit the making of reproductions by, for example,
> prohibiting access except on condition that those who have access do
> not take any reproduction equipment with them when they view it.
> This too seems ok.

Everyone seems to be in agreement that the owner of the physical object can restrict by contract access to the object. What happens, though, when the physical owner wishes to control by contract reproductions of public domain paintings he or she owns? It is, for example, quite common for a museum or library to stipulate by license that a picture may be published once, in a print run of a limited size, and that further printings or other uses of the reproduction would require further permissions (and possibly fees).

But what of the individual who then makes a reproduction of the painting as it appears in the published book? The Bridgeman case cited a few weeks ago on this list would suggest that a reproduction of a public domain work of art is itself in the public domain, so copying the reproduction as it appears in the printed volume would not be a copyright violation. Is the contract between the museum and the publisher somehow extended to the purchasers of the book as well, so that the purchasers are prohibited from making and selling copies of the reproductions as they appear in the book? Or could it be that the only entity that cannot make and sell reproductions of the painting is the publisher who initially licensed the reproduction from the museum?

Peter B. Hirtle
pbh6[_at_]cornell.edu Received on Thu Jan 14 1999 - 15:40:27 GMT