Copyright infringement?

[Unknown]

I would like to know if it is an infringement of copyright law to give
away a copyrighted photo that you purchased from the author? This is
the case in point: I have a calender purchased from a company owned by
an artist. This calender has pictures on each month that are suitable
for framing. As long as I do not make copies of these pictures and
just use the ones that I purchased in the calender, would I be
breaking the copyright laws to give them away with the purchase of
matting. If anyone knows the answer to this I would appreciate it.
Thank you. And please, no spam.

[kgrant]

This is a very interesting scenario, although I guess the answer becomes
rather simplistic when the facts are analogized slightly. The "first sale"
doctrine of US copyright law clearly allows you to divest yourself of the
possession of the photo. Referring to the analogy at this point, would you
have any question as to the answer if you wanted to know if you could give
away a paperback book you had purchased, even if the "gift of the book was
tied to the purchase of, say, a reading lamp from you? I think you will
agree that you could dispose of the book in that manner.

The area that causes a tinge of concern is the fact the you are giving the
picture to someone who has purchased matting, apparently to frame the
photo. The "first sale" doctrine does not shield one from infringement
based on creation of a "derivative work." There are some mixed results in
the cases about the allowed uses of artistic items (such as photos) and
when such a use becomes a "derivative work." For example, there is a case
holding that removing photos from a book and mounting them in plastic slabs
can be sufficiently creative to cause the work to be considered
"derivative." The general belief is that the simple act of framing with a
mat is not sufficiently creative (framers of the world, I am only citing
the law; not commenting on it!) to be "derivative."

Based on this, I would think that your acts are certainly allowed.
However, please do not consider this legal advice, even though I am a
practicing attorney. Instead, please consider it the musings of an adjunct
law professor who teaches copyright law.

Stephen L. Grant

Howard wrote in article <421bcsc9h6u4qtek9...@4ax.com>...

[iq1000]

I suspect the answer to the question I am about to pose
is "uncertain".
Here are the set of facts:
1. Mr. A is approached to provide a "turnkey" solution for a
group of non-technical office workers.
2. Mr. A does the systems analysis, selects the hardware, causes
the hardware to be installed, designs all the screens, and
writes all the software that enables the group of 25 or so non
technical people to perform their procurement function, by
viewing screens, depressing keys, and removing hard copy from
the printers, without ever seeing the actual computer.
3. Mr. A. "operates/maintains/enhances" the computer system
remotely, including backups. Mr. A. creates a backup system that
only requires a secretary to insert a tape each day
corresponding to the day of the week. An automated message is
sent if she fails to do this..
4. While the procurement production system is used daily, Mr. A,
develops and installs new applications. As applications are
completed they are "released" to provide additional functions
that a non-technical person who can read the screens and depress
the keys can utilize.
5. No programs are ever handed over by name, number, etc to the
users. In fact the users do not want to know names of programs.
They want to quickly perform their business functions.
6. Mr. A uses the system to remotely invoice the client each
month in the amount of $XXX for "operations of all production
systems". These invoices are sent and paid each month for over
ten years. In addition from time to time Mr. A provides one time
invoices for development of new systems. The dollar amounts of
such one time invoices are less than the $XXX monthly invoices.
7. No other terms are ever committed to writing. No work for
hire agreement. No licensing agreements.
8. At any point in time both production code and code under
development exist on the computer. Only one person has technical
access to the computer facility: "Mr. A"
9. The system is 'down' three times in ten years. No data is
ever lost.
10. For the first five of the ten years the client is the only
client of Mr. A. As such Mr. A. is somewhere between an employee
and an independent contractor. However, client treats Mr. A as
an independent contractor as no deductions are made and no
benefits.
11. One day Mr. A. cannot connect to 'the machine'. Mr. A
initially fears the fourth outage of the decade. Mr. A. is then
told the client has hired a much larger firm to 'take over' the
system, keep it running, and provide enhancements. The source
code for all the production applications as well as Mr. A's
development tools as well as work under development reside on
the 'machine'. The client pays the new company an amount as
large or larger to 'operate' the system created by Mr. A.
12. The new company copies the software to their own PCs to
learn how it does what it does. The new company learns the
software techniques used by Mr. A. and uses Mr. A's scheme to
add functionality to the core system. The new company transfers
the application software to different computer hardware and re-
compiles Mr. A's software with a new and different software
compiler.
12. Mr. A feels that ten years of monthly remuneration ratified
the terms of a use license, prohibited derivative works,
prohibited the reverse engineering and use of his software
development methods without his explicit approval and that the
payment to a company of dollars that were paid to Mr. A each
month to "operate" the software that the new company had no cost
or effort to create violates copyright law.
13. The client and the company that 'took over' the system feel
that Section 117 of the Copyright Act, which provide the owner
of a copy of software the implicit right to use the software and
to make certain changes to the software trump the necessity for
any continuing payments to the software's creator.
Who is correct? Is not the situation UNDECIDED? Or does it favor
one side over the other?
I am only asking for your impression. Your previous post
indicates to me that you have thought about these things and
maybe familiar with some of the court's decisions.
Regards,
Lewis
P...@prodigy.net

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