Erotic Art Museum Comes Up With Bizarre Justification For Suing Photographer For $2 Million

from the that-doesn't-sound-legal dept

Davis Freeberg pointed us to a blog post on Thomas Hawk's website, about how he was being sued for $2 million by the World Erotic Art Museum. However, if you click that link, you'll get a 404, as Hawk appears to have taken down the blog post (perhaps because the Museum was not happy about it). However, as of this posting, you can still find a copy of the posting via Google's cache, though who knows how long that will last.

Hawk's version of the story is that he went to the museum, took a bunch of photos and uploaded them to Flickr and the museum got upset about it. Since it's missing, I'll repost the pertinent info here:
The World Erotic Art Museum in Miami is trying to sue me for a minimum of $2 million for posting photographs that I took in their Museum on Flickr.

Below is most of the complaint that the museum's attorney has filed against me this morning in Federal Court. In the complaint they accuse me of violating their policy stated at their entrance saying that the museum prohibits professional or flash photography.

I saw no sign when I visited the museum.

However, I took no flash photographs in the museum, and Flickr (where I posted the images) is strictly defined as a non-commercial photosharing site. I have not sold any images of that I took at the museum and I have not profited one cent on any the images that I posted on Flickr. What's more the complaint says "at no time did Plaintiff or Plaintiff's agents give express or implied permission or authorization to Defendant to take the photographs." This is a bald faced lie. One of the employees at the museum in fact approached both me, and my friend Mo, who were taking photos to talk to us about them. He specifically asked me if I was making a book and I said no. He said fine and we continued photographing in the museum at the time.

Further Flickr explicitly describes itself as a non-commercial site. This is not professional photography.

[...]

Further the museum filed a DMCA request fraudulently and had flickr remove many images that they do not in fact own copyright to. In fact most of the images that they had flickr remove they do not own copyright on.
All of this seems rather bizarre. If the DMCA takedown claim is accurate, it sounds especially ridiculous, and almost certainly against the law, and could lead to fines against the museum, if Hawk wishes to take it that far.

The folks over at Gizmodo spoke to the museum to get its side of the story, and the museum owner there did not do herself any favors, initially claiming that Hawk lied, and then giving one of the most bizarre defenses for a bogus lawsuit we've heard in a while:
While WEAM allows media and photographers to enter the premise and take photographs, it's with the unspoken and unwritten understanding that no one would ever post anything explicit--especially not visuals involving penetration--online. By posting 334 photos--which Wilzig claims the museum was not aware he took--Hawk failed to respect this understanding and gave WEAM no choice: They had to do what "no one else had the money or guts to do."

Wilzig explained that she feels that by posting his photographs on Flickr, Hawk put WEAM at risk of "exposing [its] art work to young people" and made it appear as if he somehow represented the museum. This meant that WEAM had to stop what Wilzig describes as an "unsavory character" and the way to do it was to make an impression.

So the museum, on its attorney's advice, threatened Hawk with a $2 million lawsuit.

According to Wilzig, this was not done in an intent to make a profit off the situation, but because it was important to let Hawk know that WEAM was serious about pursuing the matter. Wilzig says that there is currently negotiation between WEAM's legal representation and Hawk--who was unable to comment on this whole matter as he was busy seeking legal advice--regarding how to settle the whole mess.
So much to comment on here. First up, if there's an "unspoken and unwritten understanding" that people wouldn't post such things, then there's no legal claim at all that you can legitimately file for someone breaking that "understanding." There's certainly no agreement or breach of an agreement. To then try to cook up other reasons to sue Hawk seems really sneaky and disingenuous.

The idea that people might think he represented the museum also seems like a stretch. Basically the lawyers try to tie some sort of common law trademark claim against Hawk, but it seems unlikely that there would be much actual confusion among those who find the images, and the owner has already admitted that her real concern had little to do with viewer confusion.

The full filing seems to get a number of basic things incorrect. It claims that Hawk sold the images, but he claims that's simply untrue. The copyright claim is also a bit strange. It's possible that the museum could own the copyright on some of the pieces in the museum, but apparently much of the work in the museum is quite old, and any copyright would clearly now be in the public domain. Also, according to Freeberg, at least one of the images complained about was a "8 ft tall fiber glass phallus to be used for customers to take a photo souvenir." That would certainly suggest a pretty clear implied license that it's okay to photograph. On top of that, it does not appear that the museum actually registered the copyright on any of the works, if it actually holds the copyright at all, meaning that its ability to sue for damages (as it appears to be doing) would be severely limited.

Basically, this looks like a museum that got upset because it didn't want images online, and then came up with a bunch of highly questionable claims over which to sue, just to show Hawk that it "was serious." That's not how the legal system is supposed to be used. While Hawk took down the post, hopefully he's getting good legal advice on how to respond.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 11:50am

    A fallacy of phallic flabbergasting fleeting feet.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 11:55am

    Here is where I have a problem with all of this:

    Flickr / Yahoo is an "image free host" Basically, there is a business transaction. You upload the image, they give you free hosting, and in return "you grant Yahoo! the following worldwide, royalty-free and non-exclusive license".

    The problem I see here is that without a model release / location release, especially for images taken inside a building, you are always at risk. The assignment of rights is a form of business transaction, even if money was no involved. There is still the basic transaction of services for valuable consideration going on.

    Thus, even though the images were uploaded "for free", they were really part of a commercial transaction, assigning rights to image (and likeness as a result) that were not granted to the guy originally.

    Like it or not, a free host is still a commercial venture.

    Like it or not, the images were taken without a location release, and as a result, cannot be resold or rights granted in any manner. Uploading to a free host would violate that.

    While most would not enforce it, some do, and they appear to be well within their rights.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Burton, Jan 13th, 2011 @ 11:56am

    Understanding?

    If the understanding is both unspoken and unwritten, how is it conveyed, mime?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Scote, Jan 13th, 2011 @ 12:00pm

    Everything but copyright

    Looking at the suit it seems clear that they are suing for everything **except** Federal copyright. Instead they sue for trespass, unfair business competition, **common law** copyright and a whole litany of filler designed to make the suit expensive to defend and, I think, to force a settlement. Also curious is the demand of $150,000 per infringement. Curious to demand that since that is the statutory award for infringement of Federal copyright, and they have only alleged (with no enumeration whatsoever) *common law* copyright infringement.

    This seems to all stem from the museum's DMCA takedown notice, where they swore under penalty of perjury that they owned the copyright in the images the demanded removed. Lying about owning the copyright, which they almost certainly did since they likely only own the objects in their museum and not the copyright on them, is illegal. The suit could be a way to try to make Hawk give up the right to sue them for an illegal DMCA takedown notice. Whatever their reason, the suit is pure frivolous BS. I hope the museum learns the power of the Streisand Effect.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 12:16pm

    Re: Everything but copyright

    No expert here, but wouldn't he own the copyrights to the *photos* he took anyway? If he was reproducing the museum's photos they'd have a claim, but that's not the case at all.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    lavi d (profile), Jan 13th, 2011 @ 12:18pm

    Technonymous

    I think it's time for copyfightin' residents of Miami to go all Cloud Gate on the WEAM,

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Sue Happie, Jan 13th, 2011 @ 12:20pm

    You all owe me $2 million...

    There is an unwritten and unspoken agreement that by reading my post, you agree to pay me $2 million!

    Now pay!

    Don't make me Sue you!


    Geez... how ridiculous!

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Reel E., Jan 13th, 2011 @ 12:22pm

    Really?

    Thats new... for the first time ever, I got a message saying the comment would be reviewed by staff before being posted.

    My my... how the mighty TechDirt has fallen...

    Why... back in my day... I remember when TechDirt would post your comments unfiltered...

    And I had to walk 2 miles to get to a computer... uphill... both ways...

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Scote, Jan 13th, 2011 @ 12:25pm

    No registered trademark

    "Anonymous Coward, Jan 13th, 2011 @ 11:55am

    Here is where I have a problem with all of this:

    The problem I see here is that without a model release / location release,


    Model releases are based on right of publicity. IIRC, the kitchen sink suit doesn't actually sue for violation of right of publicity, nor infringement of registered trademarks. A quick check on "World Erotic Art Museum" at Tradmarkia gives no hits (and USPTO fights trademarks on smutty stuff).

    So, no registered copyrights alleged, no registered trademarks alleged, no Federal coyrigh

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Scote, Jan 13th, 2011 @ 12:26pm

    Continued (oops...)

    t alleged, IIRC, in the suit. The suit appears to be serious BS.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 12:36pm

    Organize a picket of the museum and explain why. You will most definitely hurt their bottom line. Maybe to the point they will have to close their doors.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    ofb2632 (profile), Jan 13th, 2011 @ 12:42pm

    The mob uses threats also

    The museum is clearly trying to use the legal system to threaten and harass Mr. Hawk. The mob used any tactic they deemed necessary to accomplish their goals. We are seeing more and more of this from corporations and bigger companies. They decided to use the threat of law (even when they know the people they are threatening does not have the resources to counter sue) to get their way. The unfortunate part is that they are winning. I wish there were more great defense lawyers that would take on companies like this pro bono and counter sue the hell out of them.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    DS, Jan 13th, 2011 @ 12:56pm

    Re:

    Heh heh, you said bottom.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Scote, Jan 13th, 2011 @ 12:56pm

    I should add that the museum does claim to own copyright on a list of works (as you can read via the Google cache Mike linked to), saying :

    ". Plaintiff, as an employer for hire, is the owner of the copyrights to the commissioned works described on Exhibit “A” are which are hereinafter referred to as the “Copyrighted Works”."


    Except, AFIK, copyright doesn't work that way. Work for hire copyright only applies to your **employees** and not to work that is commissioned from companies or independent contractors. If you commission a work and want the copyright you need a written transfer of copyright.

    So I was wrong to say they didn't enumerate any alleged copyright, however I don't think they provided any evidence of copyright assignment by the commissioned artists, only a list of works they claim to have copyright for with no actual evidence of having said copyright.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    slacker525600 (profile), Jan 13th, 2011 @ 12:57pm

    although his second article is down, he had an initial posting

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    jfgilbert (profile), Jan 13th, 2011 @ 1:03pm

    Just a guess

    The museum's exhibits are probably pretty lame and not erotic at all, they just don't want people to know before they have paid the entrance fee.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 1:21pm

    Safety levels?

    Hawk put WEAM at risk of "exposing [its] art work to young people"

    Anyone know what the safety levels of the photos in question are? As long as they're set to "Restricted", WEAM ought to be satisfied.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 1:28pm

    This is a prime example of laws that encroach on civil liberties like freedom of expression.

    IP law is a censor tool at the end of the day and it is what will be used for.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    btrussell (profile), Jan 13th, 2011 @ 1:58pm

    Lawyers work for themselves.

    The lawyers will be paid regardless of the outcome or how silly the suit is.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    David Muir (profile), Jan 13th, 2011 @ 1:59pm

    Memory

    August 2008 is ages ago in Internet time... but remember this? http://thomashawk.com/2008/08/simon-blint-director-of-visitor.html

    I think WEAM may see Thomas as a trouble-maker and crafted their lawsuit accordingly. On the flipside, Thomas has a great deal of experience with these kinds of institutions so he should be well-prepared for this fight.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 2:34pm

    Flickr Have removed them now

    after a quick search on flick, looks like the images have been taken off

    "This image has been removed due to a claim of copyright infringement"

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 2:48pm

    Re: Memory

    I think you spotted a sh-t disturber in action.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Richard (profile), Jan 13th, 2011 @ 2:51pm

    Re:

    Like it or not, the images were taken without a location release, and as a result, cannot be resold or rights granted in any manner. Uploading to a free host would violate that.

    Under exactly which law is that true - last time I looked there wasn't one. All these "releases" are just a custom and practice that has no foundation in actual law.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Mike Masnick (profile), Jan 13th, 2011 @ 3:05pm

    Re: Really?

    Thats new... for the first time ever, I got a message saying the comment would be reviewed by staff before being posted.

    My my... how the mighty TechDirt has fallen...

    Why... back in my day... I remember when TechDirt would post your comments unfiltered...


    It got caught in the spam filter, which we've used for many, many years. No changes, just that you comment had some characteristics associated with spam, and was quickly cleared out.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Rose M. Welch (profile), Jan 13th, 2011 @ 4:17pm

    Re:

    I see that you're trying out the spam filter again, but you didn't put in anything resembling link, which would make it actually spammy. That's what my spam filter looks for, anyway.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 4:29pm

    Re:

    ...or write to Westboro Baptist Church so they can go there do a one off picket.

    Where are they when you need them?

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Mike, Jan 13th, 2011 @ 4:33pm

    huh?

    ...yet Richard Prince can make millions by stealing other people's work and reselling it. WTF is going on in the world today?

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    Andrew (profile), Jan 13th, 2011 @ 6:46pm

    Re: Re: Everything but copyright

    Not necessarily. The photos may be derivative works of the artwork. It's also possible that the pictures would not be sufficiently transformative of the original artwork to be covered by copyright if, for example, Hawk had taken shots of paintings that showed just the paintings head on. (Or at least I believe so, if I remember this correctly. Though of course this doesn't confer any additional copyrights to the museum and so isn't very relevant here.)

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 6:51pm

    Re: Re:

    http://www.photosandthelaw.com/2009/07/14/the-legalities-of-urban-exploration/#more-12

    You can read that for a start, it covers a little bit of it.

    more release information:

    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter12/index.html

    Basically, without permission to take commercial images inside the facility (and none was granted), he cannot trade or barter them for service (which is a commercial transaction). As putting the phone on Flickr grants them a license to re-use it in any fashion they see fit, you better be use you have the rights to do so.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Jan 13th, 2011 @ 7:17pm

    But his article on "Renegade Photography" is not

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    drteknikal, Jan 13th, 2011 @ 7:52pm

    been there, mostly boring

    We visited the museum, very soon after it's opening gala. Underwhelmed. Some interesting items, but a vast collection of world erotica collected, as we saw it, mostly with an eye toward all things penis or penetration. My favorites were the motion picture collections, and the souvenir WEAM emory boards.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Pete Austin, Jan 14th, 2011 @ 4:55am

    @Anonymous Coward, Jan 13th, 2011 @ 11:55am

    Dear troll. By your contorted logic, anything in life is a business transaction, which means you think your mother a whore.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Pete Austin, Jan 14th, 2011 @ 5:14am

    @Anonymous Coward, Jan 13th, 2011 @ 11:55am

    Dear troll. Your link defines commercial as follows. "A "commercial use" occurs when selling or endorsing a product or service. For example, if your website offers haircutting products and you feature pictures of people using the products, you would need a release from the people in the photos."

    Defendant is neither selling nor endorsing anything.
    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter12/index.html

    As for the twitter licenses. An image can have multiple copyright holders, because the *image* can be owned separately from the *original*, and then there are obscure things like performance rights. I think you'll find that twitter only asks for the rights in the specific image.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    Hephaestus (profile), Jan 14th, 2011 @ 8:24am

    Re: Really?

    Last year I posted a list of all of the URLs to rupert murdochs news organization. I believe the same thing happened to that comment. No biggie.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Anonymous Coward, Jan 14th, 2011 @ 9:15am

    Re: @Anonymous Coward, Jan 13th, 2011 @ 11:55am

    First, as the images were on Flickr, not twitter, maybe you might want to start by re-reading the story.

    Second, you are confusing "commercial use" with "commercial sale". In effect, if you want to take it to an extreme, he is selling his skills as a photographer. The images were not taken for trade, distribution or other, and no rights were granted to do so in this private establishment. Bartering photos for hosting is "selling" the images, and licensing them going forward to a third party (Flickr) is as well.

    Nobody is really debating the idea of who controls the original painting versus the photo, only that the gallery does not permit commercial photography, controlling the use of the likenesses and location in images. You cannot take photos in a private space without permission. Most won't mind if they are for private use, but they can be a real issue as soon as you start publishing or selling them.

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    Almost Anonymous (profile), Jan 14th, 2011 @ 10:04am

    What's that?

    """It's possible that the museum could own the copyright on some of the pieces in the museum, but apparently much of the work in the museum is quite old, and any copyright would clearly now be in the public domain."""

    What is this 'public domain' of which you speak?

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    nasch (profile), Jan 14th, 2011 @ 4:19pm

    Re: Re: Re:

    I don't think those are saying what you think they are. The first link doesn't talk about releases at all, it's about privacy and trespass. The second is about releases to use the images of people, and this story is not about that. So do you have any reference saying it's necessary to get a location release before publishing photos of a place?

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    nasch (profile), Jan 14th, 2011 @ 7:49pm

    Re: Re: @Anonymous Coward, Jan 13th, 2011 @ 11:55am

    In effect, if you want to take it to an extreme, he is selling his skills as a photographer.

    By that reasoning, there is no such thing as non-commercial use.

    You cannot take photos in a private space without permission.

    This was in a museum open to the public, so that is an irrelevant point, even if correct.

     

    reply to this | link to this | view in thread ]


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