Monday, February 06, 2006

On the Road Again

The continuing, ancient struggle between ownership of the physical object and ownership of the copyright in a work of authorship embodied therein has reared its head in a current dispute over a tour featuring the manuscript of Jack Kerouac's "On the Road." The tour organizer is reported to have refused permission to take photographs of the manuscript. Some enterprising citizens have done so anyway, see http://www.flickr.com/photos/51035555243@N01/93821899/in/pool-fairuse/
http://www.flickr.com/photos/51035555243@N01/93821727/in/pool-fairuse/
http://www.flickr.com/photos/51035555243@N01/93819794/in/pool-fairuse/

An open letter to the tour organizer protesting this policy is found here. The manuscript is owned by Colt's owner Jim Irsay. Irsay of course has no copyright interest in the manuscript itself, so any infringement action would have to be brought by Kerouac's estate. Good luck on that account. The above photographs would qualify as news reporting fair use. This is not to deny that as a contract matter one can ban photography, nor that in the case of certain material objects flash photographs should be banned to avoid deterioration. But that hardly seems a problem here.

13 comments:

Jason said...

I agree, but what would your rebuttal be to the argument that they license people to take such photographs?

William Patry said...

Control over a physical manuscript can give you the ability to license people, but the question is, if someone doesn't take a license, and you don't otherwise have a contractual relationship, what right has been violated? In the case of a copyrighted work, the answer is that the Copyright Act makes, by statute, unauthorized reproduction a violation (subject to exceptions like fair use), but for photocopying a physical manuscript the owner of the physical manuscript has no statutory right unless he is also the owner of the copyright, which Irsay isn't.

Anonymous said...

This is an important issue to libraries, since they have exhibits all the time.

I see two relationships here:

1) The mss owner undoubtedly has a contract with the library requiring the library to prohibit photographs

2) The library has a relationship (not a contract) with its users. Libraries can make reasonable restrictions on its users (Kreimer v. Morristown, 958 F. 2d 1241 (3d Cir. 1992)). Then the library has to let users know what the restrictions are and enforce them equally.

Once someone takes the pictures, though, it seems to me that all bets are off. Although the library is probably within its rights to tell a user to leave the exhibit, it almost certainly does not have the right to confiscate the photo.

Thanks for writing about this. I just blogged it at http://blog.librarylaw.com/

-Mary M.

Edward Lee said...

I think Thomas Hawk was wrong. He should respect the wishes of the library and the copyright owners. What if I wanted to take a picture of the Supreme Court justices during oral argument? Can I do it just b/c I believe in "open court"?

I've blogged more extensively about this on prawfsblawg, here:
http://prawfsblawg.blogs.com/prawfsblawg/2006/02/taking_photos_a.html

(sorry, it would be easier if we could use trackbacks.)

pilgrim said...

edward -- I think one point here is that the photography ban is not a result of the "wishes of the copyright holder," but rather, the wishes of the guy who's got a license to take the manuscript around the country (and who has no copyright interest in the manuscript). He's certainly welcome to try to stop photography by contractual means (or perhaps by vague appeals to a sense of etiquette or decorum, such as yours) but copyright law doesn't give him a leg to stand on. The fact he's dressing up his complaint as one about "copyright" is what some seem to find particularly galling. That, and the fact that it Jack Kerouac, for chrissakes. What's next, a dress code at an exhibition of Abbie Hoffman memorabilia? A "no public intoxication" rule at Timothy Leary's road show? Someone trying to shut down a parody of Woody Guthrie songs? Oh wait ...

Max said...

As a non-lawyer, I have to admit that this reminds me of the bootlegger statute. Now, yes, I know that putting a document on display requires far less creativity than putting on a real musical concert.

Even so, I'm curious if there's a chance that a creative lawyer could make a bootlegger-like argument for restricting pictures.

pilgrim said...

One could "make an argument" that photos of a literary work are infringing, and sometimes they are, but in this particular case, they very clearly are fair use (and thus not infringing reproductions of the manuscript). SO under existing law, no, but if you're thinking of sui generis protection for manuscripts (against unauthorized photo-taking), and if that "creative lawyer" happened to be counsel to the Senate Judiciary Committee, sure ;->

Edward Lee said...

pilgrim, I think you've got the story backwards. Thomas Hawk's website reveals the following comment from the exhibit organizer Ms Cook:

"My name is Myra Borshoff Cook and I have organized the tour of the Kerouac Scroll for Jim Irsay. Although Mr. Irsay owns the manuscript, he does not hold the copyright to On The Road. Therefore, we had to work with the lawyers representing the holders of the copyright and that is why the photography policy was set -- for copyright protection."

Unless she's lying (which there is no reason to believe), the wishes of the copyright owners played a part in the no photography policy.

joshua wattles said...

This a contrarian view as an amusement.

Ownership of the physical object is distinct from ownership of the copyrighted work; but doesn't ownership of the physical work occur in some part as a matter of a license from the copyright owner, actual and implied, that the physical work may contain the copyrighted work? An artist is NOT presumed to grant reproduction rights with the sale of a painting unless there is a contract to the contrary but the artist is presumed to have granted a right in favor of the purchaser to control the copyrighted work as embodied on the canvass. So in a sense, and maybe in an absurd sense, the owner of the physical object could be thought of as the owner of an exclusive right under copyright with respect to the appearance of the copyrighted content on the physical object. That doesn't get you to reproduction rights but it certainly gets you to display rights - - rights clearly held, under copyright, by the purchaser of the object. That may not get you far enough to block photographs as a matter of copyright law but I certainly wouldn't blush at the argument. Many uses of copyrighted works violate several exclusive rights simultaneously and the rights can be held by different parties at the time of the infringing conduct.

Section 109 (c) says:(c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. And section 106(5) includes literary works under the display right. That seems to be a right under copyright as much as the reproduction right is a right under copyright and the display right belongs to the owner of a copy lawfully made under the copyright laws.

Photographing the Kerouac manuscript while in contravention of the owner’s conditions attendant to his or her right of display would seem to be a copyright infringement (or at least arguably).

Bill Patry wrote: The above photographs would qualify as news reporting fair use. When did Flickr become a site with “news” protection in a fair use analysis? It isn’t the exactly the New York Times (or even the Post).

pilgrim said...

Edward -- You're right, there is a post in the comments section that says that. Taking that post at face value (i.e. it's really her, she really represents Irsay, etc.) it does suggest the owners of the copyright in On the Road don't want it photographed either. THe post still suggests Irsay made the decision. And the bottom line is that any conditions on displaying the work would have been his (or the l;ibrary's) not the copyright holders'. One thing I did have "backwards" is his legal control of the manuscript -- he's not just renting or licensing it from the owner, *he* owns it. I'm not suggesting Ms. Cook must be lying. Rather, she seems to be wrong about the copyright stuff. In addition to the fair use aspects of snapping photos of a manuscript, if Irsay owns the manuscript, he's got a right to display it publicly. (Sec. 109(c).) Now, maybe the copyright owner's have been hurling legal threats at him, and he thought it wasn't worth the trouble to argue. But he's well within his rights to take his "On the Road" on the road, and folks snapping photos seem to be, too.

William Patry said...

Before I had twins, and when I lived in Manhattan, I used to go to the Village Vanguard alot, including the 1 am show. the Vanguard, like lots of spots had a no photographs policy and I thought and do think that should be respected, same for museums and libraries. But its not a copyright issue, and the post was about the confusion on that score that seems to creep in sometimes. To the extent the Kerouac estate also didn't want photographing, I do think that Flickr or anyone else who runs a story about someone who took a photo against the policy is engaging in news reporting. In the end, I guess I don't see the purpose in fussing about it.

Since someone mentioned the late Abbie Hoffman (may his name be a blessing), how about Stew Albert who recently died (blessing for him too). Where have all the Yippies gone, "long time passing," when we need them the most?

Anonymous said...

Bill,

I could not agree more re: Yippies.

Pigasus for President in '08!!!

Thomas Hawk said...

Well I'm glad to see that some smarter than me would also feel that my photograph falls within fair use. This was my argument in publishing the photo and the accompanying article that went with them and then in subsequently selling a copy of the photograph to San Francisco Magazine that they just published in their March issue.

My primary motivation for publishing the photo was editorial news -- particularly as it relates to restricting the rights of photographers. As a photographer I and others have been harrassed, threatened and in some cases even detained, without (in my opinon) due cause (since when did photography itself become a crime allowing the police to run a background check on you). http://thomashawk.com/2005/08/right-to-bear-cameras.html

To the extent that I can report on what I feel are abuses of photography restrictions I hope to build awareness of the rights that photographers do in fact have.

I do consider myself a citizen journalist and in addition to Flickr I published the photo at my blog. I have published many other journalism stories and photographs there in the past and also regularly submit photos to SFist, a local San Francisco news blog.

I have been told by one of Jack's biographers that the estate has threatened him before legally and this raises concerns with me but I felt that as long as I was publishing the photos as news and quoting only a selection of the text, that I would fall within fair use rights. SF Chronicle here in town and other photos by newspapers are online. It would appear that it can be photographed, just by permission with the approval of someone for promotional purposes.

In the spirit of Jack himself and also to a degree as protest to my opinion that great works of art should not be locked up for long periods of time when inheirited by extended family, I shot the scroll.

I have not heard from the estate yet and suspect (hope) that I will not, but am willing to push the matter if it goes there as I believe pretty strongly that photographers should be allowed a wide berth when covering news events over copyright law.