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The Naked, Desparate Truth

By Senior Copyright Counsel, Google Inc.

Actress Marcia Cross is cross, the pun in the newspapers goes, over some naked pictures of her thrown out in the trash, and picked up by keen-(and no doubt wide) eyed garbage men. Some pictures of her allegedly show her showering outside (what kind of neighborhood does she live in, anyway?).

The pictures have now fallen into the hands of an individual who has offered for sale similar (indeed racier) images in the past. Cross is said to be thinking about a copyright infringement suit, but such a suit seems groundless unless her husband took the photographs. (But if he didn't who did?). The distinction between ownership of the physical object and the copyright is found in Section 202 of the Copyright Act but is ancient, going back to a saucy dispute between Alexander Pope and Edmund Curl in which Alexander Pope sued over an unauthorized republication of letters between himself and Jonathan Swift. Pope v. Curll involved dishonesty aplenty on both sides. Edward Curll was a book seller-publisher from Grub Street. He is known for many things, none of them positive. It was said that "Curll would sell anything by whatever means presented themselves? His activities as publisher and bookseller were unscrupulous even for an age of fairly low journalistic ethics. He was a pirate, plagiarist, and no publishing trick was too low for him to stoop to in the name of profit."

Curll had frequent rows with those whom he scandalously pilloried, and was called before the House of Lords a number of times. Alexander Pope's hatred for Curll spanned decades. Pope himself was no saint, and stooped at nothing to make Curll miserable, including slipping him an emetic once. Pope was extremely vain, and in this respect his vanity and battle with Curll came together.

Desiring to publish carefully sculpted letters, but not wanting to seen as doing so, Pope, through an intermediary, delivered anonymously to Curll, had copies of letters he had written and letters written to him by Jonathan Swift, as well as letters by members of Parliament. The letters by members of Parliament were particularly problematic because of a separate statute barring their publication. Pope baited Curll into publishing the letters. Curll took the bait, published the letters, was hauled before Parliament and the courts. In the courts, an injunction was entered barring publication of all the letters until the answer was filed. On Pope?s motion to extend the injunction Lord Hardwicke lifted the injunction as to Swift?s letters, but left it in place as to Pope?s letters: ownership of a lawful copy of letters by Curll did not permit Curll to publish them without Pope?s permission.

Pope conceded that Curll owned the physical letters, but Curll countered that ownership of the physical lettrs meant that Pope was no nonger ?the author and proprietor of any of the said letters,? in short, as Ronan Deazley put it, Curll ?claimed that Pope?s dominion over the letters began and ended with the physical manuscript.? For his part, Pope argued that ?while he was no loger the proprietor of the letters in question, he was still their author, and as such retained the ability to decide whether or not they should be printed and published.? The reports of Lord Hardwicke?s precise phrasing of the matter vary, given the lack of a manuscript version of the opinion, but all reports agree that the Lord Chancellor ruled Curll?s ownership of the physical object did not give him the right to print them.

Full post as published by The Patry Copyright Blog on November 01, 2006 (boomark / email).