Correspondence: Point Of View

In the Rifftides report on the ASCAP Deems Taylor Awards ceremony the other day, I mentioned that audience members were told not to take photographs through the windows of Jazz At Lincoln Center's Frederick P. Rose Room. If that restriction --based on a claim of copyright-- sounded strange to you, you're not alone. Noel L. Silverman, a veteran lawyer who represents many musicians, takes issue with it in this communique.

I'm surprised at JALC, most especially whoever there has instructed the staff to warn people in the audience not to take photographs of the scene out the sixth story windows of the Rose Room: "JALC has copyrighted the view through its windows."

Well, perhaps it has. If so, that would prevent others from reproducing the JALC photograph (without permission) and otherwise using the JALC photograph in ways which violate the exclusive rights of a copyright owner. But it doesn't prevent anyone else from taking her or his own photograph of the same scene.

Just think what would happen if it did. People could claim a quasi-monopoly in a particular view from whatever location they had marked out for themselves. OK - that's your spot, but this is my spot. And pretty soon there wouldn't be any more spots left, and we could no longer take photographs of the Grand Canyon, or the Washington Monument, or sunset in Central Park from the Frederick P. Rose Room.

The Copyright Law doesn't work like that. It grants protection to "the writings of an author" which specifically includes photographs, just as it includes musical compositions, paintings, choreography, sculpture and various other things which require a somewhat expansive definition of "writings" as well as "author." It requires that the work, to be eligible for copyright, possess a modest degree of originality, but it doesn't prevent someone else from exercising his or her own original creative skills in treating a particular subject.

That makes sense, too, when you think about it. While the good people at JALC have a right to protect their expression of the view from their window - which was taken at a particular time of day, covering a specific area, in color (or black and white), with a specific degree of sharpness, depth of field and intensity, why should that prevent someone else from taking a photograph from the same spot with a different lens, with a different focus, a different kind of film, or a different length of exposure - and while we're at it, at a different time of day, at a different season of the year, with a different set of people in the park, with a different assortment of foliage in bloom, with different weather; you get the idea. In fact, the Copyright Law doesn't prevent any of that. It simply gives the copyright owner certain limited rights in a particular expression of the author's vision. I can take the same photograph, from the same spot, under circumstances which I regard as worthy (or interesting, of challenging, or whatever I regard them as), and end up with a copyright in the expression of my vision. The only thing I may not do (and even here there are exceptions) is copy your photograph.

Now JALC may have decided - as landlords and property owners or even as lessees, if that's what they are - to prevent guests on their property from taking photographs of a particular view under certain or even under all circumstances. (It may in their view enhance the uniqueness of their particular photograph.) They can do that in the same way that I can prevent you, or at least attempt to prevent you, from looking out my kitchen window, or using my blue towels instead of the green guest towels. But none of that has anything to do with copyright.

And shame on them for suggesting that it does. ASCAP certainly knows better as well. Perhaps they were just being good guests, or trying to improve their chances of being invited back.

Noel Silverman is Paul Desmond's executor. He played the crucial role in persuading the American Red Cross to acknowledge the millions of dollars that have gone to it from the Desmond estate. The story of how he did it is in the Coda section of Take Five: The Public and Private Lives of Paul Desmond.