RE: Re: Air as public space

From: Elizabeth T Russell <brussell[_at_]>
Date: Fri, 20 Jan 2006 17:25:01 -0500

Don't underestimate plain language and common sense, either. The statute says "ordinarily visible" from a public place. If a photographer tethers a camera to a balloon and flies it over a fence to shoot a building otherwise obscured from view, I could certainly see a judge drawing the line -- whether or not it was technically a "trespass." Unfortunately, as far as I know, we remain without judicial guidance on this point and are left to wrangle about legislative intent behind the architectural exception: H.R. 101-735; 1990 U.S.C.C.A.N. 6935.

Elizabeth T Russell, Attorney at Law
402 Gammon Place, Suite 270
Madison, WI 53719
fax 608-833-1566

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]] On Behalf Of Steven Jamar Sent: Friday, January 20, 2006 2:26 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Air as public space

Ancient common law: you own all the way up. All the way. Way, way, way up.
One change: You don't own and no country owns space, so at the very least you can take satellite photos.

What happens between your treetops and space? Well, airplanes can fly over, unless so loud and low as to be a nuisance, and even then federal law can preempt property rights. States (countries) control the airspace (but not space) over their country's borders and so can exclude others from flying over.

I don't know the exact status of the rights to space above your house or building now -- but I think flying over would be a trespass unless permitted by some other law.

And if this is correct, then the photo would not be a lawful copy.

Now, if you were on a commercial flight, and took the picture, I think you are ok, because the commercial airline is probably in what in some relevant sense is public space. Different rule if you rent a private plane or helicopter and invade the airspace. But, if you were above the street or in any place that would be somehow public, you would be ok.

All of this is off-the-cuff and unresearched and worth exactly what you have paid for it. Sorry.


On Jan 18, 2006, at 5:20 PM, Scott Butcher wrote:

Prof. Steven D. Jamar                             vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]
Washington, DC  20008

"To see a World in a Grain of Sand 
And a Heaven in a Wild Flower, 
Hold Infinity in the palm of your hand 
And Eternity in an hour. "

William Blake
Received on Sat Jan 21 2006 - 03:25:01 GMT

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