You're right it isn't a copyright or trademark issue, it is a property rights/trespass issue, however the lawyers for the Plantation decided to sue the photographer for copyright infringement, for which they clearly have no standing.
Since you haven't seen the pictures I'll keep this simple, the Photograph in question is of an old oak tree lined road. The oak trees are at 250+ years old. At this point even if the road were laid out by a surveyor, (and not generations of Deer), and the trees planted by a gardener, (and didn't simply take advantage of the clearings to the side of the road), they have long since stopped being a work of man and have become a work of nature. As such they are not subject to copyright, (if they are then I guess the US Government could claim copyright to the Grand Canyon, something I think none of us would like to see). The Foundation is therefor claiming copyright to something that cannot be copyrighted. On the face of it this case should go no farther than the nearest circular file. The Codicil is in this case unenforceable, it is only enforceable on the foundation, who in this case is mistaking a limitation on itself, with a limitation on a third party. In my humble opinion the Grantor wanted to make sure that the foundation didn't sell the likeness of the Plantation House to a business concern, probably to avoid the creation of something like "Old Dixie Plantation, Sour Mash Whiskey" or "Old Dixie Plantation, Real Old Fashioned Lemonade", with an Image of the plantation house prominently displayed on the packaging. I doubt very much that a former wildlife artist would want to hurt another artist with an aesthetic appreciation of the Plantation's beauty, (this does not in any way forgive the trespass however). If the rule of no photographs is clearly stated and enforced and the Photographer entered the property without permission, then he is clearly liable for being charged with criminal trespass. The photograph itself is proof of the charge. That is an open and shut case. Criminal trespass is a felony in most states carrying with it some jail time and a hefty fine, (I don't know the law in South Carolina, but in Texas it could get you shot). I would think that a felony conviction would serve the case better than a lawsuit seeking monetary damages. I was going to say that if the Photographer attempted to sell the images to a commercial concern for advertising or trademarking purposes, he might be in trouble. But I'm not even sure that would be true,the commercial enterprise would probably be if it then used the name "The Dixie Plantation" in their advertising along with the photographs. There is however another question. If the images were obtained unlawfully, (even thought copyright isn't involved), what should be done with the profits from them? graywolf wrote: > It is not a copyright or trademark issue. It is a property rights issue. > There > is nothing stopping you from taking a photo of my Blazer, but since with its > unique pattern of red primer, or a visible license plate it is clearly my > particular car, you can not sell photos of it without my permission. > > I have not seen the pictures in issue, but if they are clearly of their > property > they have a solid case, but if they are just a tree line road that could be > any > such road anywhere, they do not. That most likely will be something for the > courts to decide. > > To make matters worse there is apparently a codicil in the will that gave > them > the property prohibiting commercial use of the property. If they do not fight > those photographs they could lose the property to family members who probably > resent that he left the property to someone else. > > It sounds like a real legal tangle all the way around. > > > > P. J. Alling wrote: > >> I believe you're wrong on that. You might be able to trademark the image >> of something. Which will limit the use of images of it in some ways,In >> fact the Colt Firearms Co. has trademarked the Blue Dome of their former >> building, and no one else is allowed to use it in connection with gun >> manufacture or gun sales, but that's really a very limited control of >> the image. You can't copyright a work of nature, and the copyright on >> any the buildings on the Plantation if it ever existed at all has fallen >> into the public domain. His crime is trespass plain and simple, if he >> had permission to be there, and had a camera with him, then that >> permission had to be revoked, (or given with stipulations to begin >> with), for even that to be the case. >> >> graywolf wrote: >> >>> Well, as to the legality, one does not have the right to sell images of >>> someone >>> else's clearly identifiable property without their permission. One does >>> have the >>> right to take the photos, without violating any laws of trespass, it is >>> selling >>> the images that is questionable. One would assume that the right to the >>> income >>> from ones own property is clear, otherwise I want every one on the list to >>> send >>> me rent. regardless of who owns the property they live on <GRIN>. >>> >>> >>> Jack Davis wrote: >>> >>> >>>> Mr Ham had no right to do what he did. "Private" property rights should >>>> always be respected especially when privacy is to be compromised by >>>> being held up to the world to see. >>>> "Privacy" and "security" are too closely related these days. >>>> That being said, I'm somewhat ambivalent about being restricted from >>>> taking pictures of something which is on private property, but from a >>>> public property position. >>>> >>>> Jack >>>> --- Rebekah <[EMAIL PROTECTED]> wrote: >>>> >>>> >>>> >>>>> Just found this interesting, what do you guys think? >>>>> >>>>> http://www.thestate.com/local/story/190126.html >>>>> >>>>> rg2 >>>>> -- >>>>> "the subject of a photograph is far less important than its >>>>> composition" >>>>> >>>>> -- >>>>> PDML Pentax-Discuss Mail List >>>>> PDML@pdml.net >>>>> http://pdml.net/mailman/listinfo/pdml_pdml.net >>>>> to UNSUBSCRIBE from the PDML, please visit the link directly above >>>>> and follow the directions. >>>>> >>>>> >>>>> >>>> >>>> ____________________________________________________________________________________ >>>> Be a better Globetrotter. Get better travel answers from someone who >>>> knows. Yahoo! Answers - Check it out. >>>> http://answers.yahoo.com/dir/?link=list&sid=396545469 >>>> >>>> >>>> >>> >>> >> > > -- Remember, it’s pillage then burn. -- PDML Pentax-Discuss Mail List PDML@pdml.net http://pdml.net/mailman/listinfo/pdml_pdml.net to UNSUBSCRIBE from the PDML, please visit the link directly above and follow the directions.
