Can you prohibit people from taking pictures of Jack Kerouac's On the Road manuscript on display at the library?

William Patry, copyright treatise author, calls our attention to a current dispute over Jack Kerouac's On the Road manuscript currently on tour at the San Francisco Public Library.

According to Thomas Hawk (pen name), a digital media and technology enthusiast, a security guard at the library told him he couldn't take pictures.

It's not really a copyright issue. Patry tells us that he thinks the photographs in question would qualify as news reporting fair use.   

But that's not the only way to control content.  The owner of a manuscript can restrict use by contract.

Patry writes:

Control over a physical manuscript can give you the ability to license people, but the question is, if someone doesn't take a license, and you don't otherwise have a contractual relationship, what right has been violated? In the case of a copyrighted work, the answer is that the Copyright Act makes, by statute, unauthorized reproduction a violation (subject to exceptions like fair use), but for photocopying a physical manuscript the owner of the physical manuscript has no statutory right unless he is also the owner of the copyright, which Irsay isn't.

My take: I see two relationships here. First, the manuscript owner has a contract with the library.  It likely has a clause requiring the library to prohibit photographs.   Second, the library has a relationship with the public.  Although it's unlikely that the library requires the public to sign an agreement before entering the exhibit area, the library has the right to enforce reasonable rules of conduct, related to its mission. Kreimer v. Morristown 958 F. 2d 1241 (3d Cir. 1992).  Assuming the library does a reasonable job putting patrons on notice and enforces the policy equally (i.e. no one takes photographs), I believe it has the right to enforce the policy. 

Then there is the practical aspect - it is a public library, after all, and doesn't have the capacity to require people to check their cameras at the door.  All it can do is post signs and security guards, and then tell someone to leave if they violate the policy. The pictures already taken, by the way, have been set free on flickr.

Comments

[Jennifer Jerry]

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[ali durmuş]

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[Thomas Hawk]

I was told on my blog by Myra Borshoff Cook, the current tour coordinator, that the issue was copyright. She did not bring up preservation. That being said though I think the simple answer is to allow photography but not *flash* photography (although I have also seen things in print that cast serious doubt on the ability of flash to damage documents and especially when, like this one, it's under a glass dislay case). If you were really paranoid you could in fact have photographers required to check in first before shooting and give them clearance after they give you a verbal statement of the understanding that flash is not allowed.

I don't think it is a preservation issue at all, I think it's a copyright issue which I've handled responsibly and within the realm of fair use.

I have written an update post on the matter at hand and have included recent correspondance from Kerouac biographer Gerald Nicosia who definitely has an opinion on the matter.

http://thomashawk.com/2006/02/update-on-san-francisco-public.html

[Mary]

Paul - I concur that there may be a preservation issue, which would certainly make it a reasonable restriction by the library.

If, however, there is no preservation issue but only a content control issue, then I see Thomas' point.

In fact, is it reasonable, for a public library, whose mission is to disseminate information, to restrict photography unless there's a preservation issue?

If it went to court, I suspect the library would still win, because it seems reasonble to restrict photos simply because that was the condition to get the traveling exhibit.

Perhaps moving forward, libraries should look closely at restrictive agreements to ferret out those that have merit (preservation) and those that have none (trumped up copyright rights). A tough job for a library employee who probably doesn't have a law degree and in fact has 30 other things to do that same hour.

Still, practical concerns aside, I wholeheartedly agree with Thomas that public libraries have a responsibility to make their collections available beyond their own walls. Here, we're not talking about the library's own collection, but why stop someone else from taking a fair use photo? I've enjoyed looking at Thomas' photos, and it looks like interest in the photos is going to give them more exposure in the world at large.

[Paul]

Not being farmiliar with all of the circumstances, I can say that special collections and manuscript collections as well as museums often prohibit flash photography in their exhibits because the materials are light sensitive, it may very well be a preservation issue that is being addressed with this policy.

[Thomas Hawk]

Not only have the photos been set free on Flickr and my blog but I also sold one of them to KQED's (local public TV station) San Francisco Magazine where they are going to run it in next months issue.

Although this exercise was not about my getting paid for the photos, I have no objection to them publishing fair use pictures that I have taken.

The bigger issue here for me is the broader one about what a Public Library should restrict and about the ability for someone to utilize fair use within the existing copy right structure.

In my opinion, the San Francisco public library caved. They wanted the desireable exhibit and so they agreed to the no photography policy at the insistance of the tour coordinator. I suspect that they also may be paying Irsay for the right to show the scroll.

For those that know the scroll (and by the way scroll is more a marketing term for the object, Kerouac apparently never used that term per Kerouac biographer Gerald Nicosia), it would be difficult to photograph it beyond bits and pieces which should fall under fair use.

While I can see librarians putting restrictions on public libraries to the extent that they need to physically protect a document (eg. if handling in photographing would damage a fragile document), I do think that public libraries have a responsibility to make their collections available in some ways beyond their own walls.

We as a culture benefit to the extent that we have access to the broadest library of knowledge from anywhere in the world.