In an earlier incarnation of the "Dinosaurs of Cabazon" page, the only nearby restaurant I mentioned was the Wheel Inn. I omitted any word of the Burger King or Denny's. This omission elicited the following chain of emails:
From: Sherry Minkoff [mailto:minkoff@home.com]
Sent: February 09, 2000 6:45 PM
To: Frank Wu
Subject: Cabazon Dinosaurs
Importance: High
I was taken back when I searched for webpages dealing with Dinosaurs and found our dinosaurs on your webpage. We bought the property about six
years ago from the Bell Trust. Much development has occurred with a
lot more to come. On the 60 acres we own, is now a Denny's Restaurant run by my husband and myself, my father-in-law owns the entire 60 acres
and is planning on building a full service truck stop along with a hotel as soon as a flood wall can be built.
I am sure you realize these dinosaurs, when photographed for publication or advertising, must have written permission from the owner. When
were your pictures taken?
I would like you to advertise our Denny's Restaurant on your webpage.
I see you advertise the Wheel Inn which are tenant's of ours. We would appreciate the same advertising. There is also a Burger King on the
location. The Denny's has many window views of Dinney and Rex for the children to enjoy along with balloons for all the kids.
We appreciate your tribute to our dino's and Claude Bell and would like you to add our restaurant to your site which has been open for about a
year and a half.
I expect to hear from you.
Our e-mail is minkoff@home.com
Thank you,
The Minkoff Family
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From: Wu, Frank
Sent: February 11, 2000 11:11 AM
To: 'Sherry Minkoff'
Subject: RE: Cabazon Dinosaurs
Dear Sherry:
If you would like, I can add an ad to the website for the Denny's, BK or any other local establishments that you own. However:
For the record, I believe, as a matter of law, the dinosaurs would be considered "public structures," akin to buildings or bridges, the
designs of which can, of course, be copyrighted. However, the public photography
of these large public structures cannot be prohibited due to the presence of "fair use" laws. Buildings and other large public structures
basically form a part of the physical landscape, the same as a hill or a tree. An
individual building owner cannot prevent people from standing in front of that building and having a picture taken. Fair use states that
publication of the photos of public structures is acceptable in contexts such as
newspapers (and I think the website is like this). Advertisements
are, of course, a separate thing, but my website is not a paid advertisement or advertisement of any kind.
In addition, my discussion of the "Wheel Inn" is not an
advertisement (I generate no income from the website, and the Wheel Inn has not paid me for
the mention of the restaurant). My statements about the Wheel Inn are
akin to a restaurant review in a newspaper, which is again covered by "fair
use" laws. I can dig out court cases if you'd like.
However, I don't want this to turn too acrimonious. I'm just telling
you where I stand legally.
However, because I am a nice person, I would be completely willing to add a banner ad or two to the Denny's and/or Burger King or anything other
establishments you own or run in the area if you'd like. Just send me
the html code and I will add it to my page within a day or two of receipt.
I just want to say that I am willing to do this for you, but I don't feel the legal imperative to doing this.
Frank Wu
----------
From: Sherry Minkoff [mailto:minkoff@home.com]
Sent: February 11, 2000 3:30 PM
To: Frank Wu
Subject: Cabazon Dino's
Importance: High
Dear Mr. Wu,
Thank you for writing back. The dino's are not considered "public Structures", they are privately owned by my family. We have a LICENSE
AGREEMENT that our attorney drafted for just this reason. We are paid a fee of anywhere from $ 2,500 to $3,000 for a photo shoot. I am
however not sure if a website is exempt. We will contact our attorney to find out exactly how the law reads on this.
We are not trying to play hardball here, it is frustrating for us when we see our dino's in publication without permission because many people
do not realize they can't do it. They must have permission from our family along with a signed License Agreement. We must be able to control
how the dino's are used.
We will contact our attorney and find out where we stand with this issue.
We too are nice people and would like to work with you to help us mention our Denny's on your website.
I will contact you after speaking with our attorney.
Sincerely,
Sherry Minkoff
The Minkoff Family
----------------
From: Wu, Frank
Sent: February 11, 2000 4:43 PM
To: 'Sherry Minkoff'
Subject: RE: Cabazon Dino's
Sherry,
I don't want to fight about this. And I understand your desire to
protect the use of images of the dinosaurs, which I know you own. I
understand that you want to try to control what is published about them. I understand
that.
Also, my previous use of the term "public structures" was
inaccurate; I really meant "architectural work," which of course has a
different legal meaning. The former term is inaccurate, because, as you say, you do,
in fact, own the dinosaurs. And, yes, perhaps in retrospect I should
have found somebody in authority to ask permission first before posting the images.
Let me ask you this, Sherry. What do you really want? Do you want me
to put up an ad for the Denny's and Burger King and/or say good things about them?
I said I would do this. I did not eat at either establishment (or at
the Wheel Inn) when I visited the dinosaurs, but I have eaten at other Denny's and BK's and they're just fine, and I'm willing to say so in print.
Please send me the html code or point me to a URL where I can copy a banner ad or
provide some text you would like to see added to my website, and I will put that up. That's not a problem and would be the easiest solution.
If there is anything else that I've said about the dinosaurs that you specifically
object to, let me know about that, too, and I will add that.
Also, you should know that I am not willing to pay a $2,500 to $3,000 fee for a photo shoot. On this topic, you should know that the pictures
on the website are not photographs that I took, but rather scanned in images of postcards which I purchased while visiting the dinosaurs. This fact
may raise other issues. I am not willing to pay for that fee because, frankly,
I don't have that kind of money. Also, my website is not for me a commercial endeavour. As I said, I make no money off the website.
If it comes to continued requests for a fee, then I will simply take down all the
images of the dinosaurs, if that would settle it.
Sherry, I would really like to work this situation out with you.
However, keep in mind that I am just a guy with a website. I'm not doing this
for money, but for love and appreciation of the dinosaurs. Again, if you
want me to advertise Denny's and Burger King, I am more than willing to do that.
Frank Wu
P.S. In addition, there was no posted sign saying that it was forbidden to take photographs or publish photographs of the dinosaurs. To clarify
this situation, you may want to post such signs.
Sherry,
this is summarizes my legal position on this issue:
In the treatise on "Copyright," Aspen Law & Business, 2000
Supplement, Paul Goldstein writes {at 5.2.1.5 on "Architectural
Works"}:
"Section 120(a) of the 1976 Copyright Act, added by the Architectural Works
Copyright Protection Act [Pub. L. No. 101-650, tit. VII, 104 Stat. 5133,
8515-8516 (Dec. 1, 1990)] provides that, once an architectural work has been
built, no rights exists 'to prevent the making, distributing, or public display
of pictures, paintings, photographs, or other pictorial representations of the
work, if the building in which the work is embodied is located in or ordinarily
visible from a public place.'"
Goldstein continues:
"Congress' main purpose in carving out the exemption in section 120(a) was
probably to excuse camera-toting tourists from liability for photographing
buildings. But section 120(a) also exempts commercially important conduct. For
example, section 120(a) gives commercial photographers free entry into the
market for museum slides and postcards depicting architecturally important
buildings."
I think the text is pretty clear.
Sherry, please let me know how you would like ad(s) for Denny's or BK to appear
on my website. And please let me know if posting such ads would resolve
this issue.
Frank Wu
--------
After I sent this last letter, I added the present text mentioning Denny's and Burger King. But I never heard from Sherry Minkoff again.
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