Some reactions to the Bean-teaser from yesterday.
1. The photo, to the extent it copies, copies a curve and reflexity, neither of which are original to the Bean;
2. The taking is de minimis;
3. Look at the statute;
4. Look at the law. On that point, a brilliant colleague (whose employer insists that its employees hide their lights under bushels) writes:
When architectural works were added to the Copyright Act in 1990, they carved out photographs of architectural works, but not sculptures. The CBS v. Martin Luther King decision in the 11th Circuit discussed when a divestive publication permits photographs of outdoor artistic works, which I’ve copied and bold underlined below. Letter Edged In Black is the best-known case on the topic, and involved a sculpture exhibited in an outdoor plaza:
It appears from the case law that a general publication occurs only in two situations. First, a general publication occurs if tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work. See Burke, 598 F.2d at 693 (“The decisive issue was whether [the author’s] release of the film itself to [a third party] was, under the circumstances, a general publication.”); Mister Maestro, 224 F.Supp. at 107 (” ‘A sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.’ “) (quoting Nimmer, supra, 56 Colum. L.Rev. at 197); Nimmer, supra, 56 Colum. L.Rev. at 196 (“[E]ven if a performance were regarded as a copy of the work being performed, the act of publication would not occur merely by virtue of viewing the performance since an audience does not thereby gain such dominion over the copy as to warrant the conclusion that the work has been surrendered to the public.”). Second, a general publication may occur if the work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public. See American Tobacco, 207 U.S. at 300 , 28 S.Ct. at 77 (“We do not mean to say that the public exhibition of a painting or statue, where all might see and freely copy it, might not amount to [divestive] publication….”); Patterson, 93 F.2d at 492 (“The test of general publication is whether the exhibition of the work to the public is under such conditions as to show dedication without reservation of rights or only the right to view and inspect it without more.”); Letter Edged in Black Press, Inc. v. Public Bldg. Comm’n of Chicago, 320 F.Supp. 1303, 1311 (N.D.Ill.1970) (invoking this exception where “there were no restrictions on copying [of a publicly displayed sculpture] and no guards preventing copying” and “every citizen was free to copy the maquette for his own pleasure and camera permits were available to members of the public”). However, the case law indicates that restrictions on copying may be implied, and that express limitations in that regard are deemed unnecessary. See American Tobacco, 207 U.S. at 300 , 28 S.Ct. at 77 (holding that there is no general publication where artwork is exhibited and “there are bylaws against copies, or where it is tacitly understood that no copying shall take place, and the public are admitted … on the implied understanding that no improper advantage will be taken of the privilege” (emphasis added)); Burke, 598 F.2d at 693 (holding that releasing a film to a professor and host of an educational television program, and authorizing him to copy and broadcast same on public television was a limited publication because the grant of permission to use the film contained an implied condition against distributing copies of the film to others or using it for other purposes); Nutt, 31 F.2d at 238 (lectures were not generally published when delivered because oral delivery is not publication, and “[e]ven where the hearers are allowed to make copies of what was said for their personal use, they cannot later publish for profit that which they had not retained the right to sell”).