Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Connie Mableson wrote:
> It is property owned by a person. You are depicting it or using it, the
> property, and there are valuable property rights associated with the
> animal held by the owner. 

There is no general right to control all depictions of one's property,
and no general right to enjoy all the value associate with it.  Trespass
protects against someone physically interfering with property; copyright
and trademark protect against certain "uses" of intangible property.  I
could take a picture of your parked car downtown; you wouldn't have a
property right to stop me.

I was curious whether there was some animal-specific law here; while
Nimmer and McCarthy would approve of animal rights of publicity, both of
them assumed that there weren't already such rights.   If you could
point to a case or statute establishing one, I'd be quite interested.
It'd make for a good blog post, at the least.

>I have represented several horses and dogs
> (LOL actually the owners as the dog cannot execute the retainer
> agreement).

In these cases, isn't the owner agreeing to make the animal available to
be photographed, in exchange for money and for certain promises about
what will be done with the pictures?  No payment, no photo session.  If
we're talking about people downstream who come into possession of the
photographs -- say, through seeing a CC license -- they wouldn't be
liable on the contract, since they never contracted with the animal's
owner.

Given that, I'd guess that the animal owner worried about unauthorized
reuse of pictures would contractually require the photographer only to
license the pictures in certain specified ways, and possibly even to
assign the copyright in the photos.  That would bring us back to the
usual CC license case; licensees can't simply assume that the licensor
actually has the authority to license the work.

James