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.

Filed Under: copyright, photography, thomas hawk, trademark
Companies: world erotic art museum