New Hampshire Bar Journal
2005 Fall, 48.
CRIMINAL THEFT OF AN IMAGE State v. Nelson and Federal Copyright Law
New Hampshire Bar Journal Volume 46, No. 3, Pg. 48 Fall 2005 CRIMINAL THEFT OF AN IMAGE State v. Nelson and Federal Copyright Law Bar Journal Author - Olli S. Baker
The New Hampshire Supreme Court recently affirmed a conviction in criminally misappropriated photographic images, where the defendant was charged with violating a state theft statute. Unfortunately, federal copyright law enacted in 1976 had pre-empted the statute in question.
The Nelson Case
The facts are uncontested. The defendant Nelson, a landlord, was doing maintenance work in a tenant's apartment. He discovered a set of intimate photos of the tenant, who worked as an exotic dancer. He took the photos to his apartment, scanned them into his computer, and returned them. Upon discovering what had happened, the tenant informed the police, who brought criminal charges against Nelson under the Receiving Stolen Property Section of New Hampshire's theft statute: "A person commits theft if he receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it has probably been stolen, with a purpose to deprive the owner thereof."(fn1) After conviction, Nelson appealed.
On appeal, the Supreme Court affirmed. The Court rejected Nelson's argument that the images on his computer did not fall under the statutory definition of property, on the grounds that they were covered by language in the statutory definitions that included "intangible personal property" having "value." The Court pointed out that the images were property "in which the tenant had an interest he was not allowed, under the statute, to infringe," rejecting Nelson's argument that the images on his computer were his, because he created them by scanning them himself. Nelson also argued that he had no intent to deprive the tenant of value or benefit in the photos, because he returned them after he scanned them. The Court rejected that argument, pointing out that the right to exclude others from the possession of property is "[i]ntegral to ownership." Finally, Nelson's argument that the statute did not in effect place him on constructive notice that his acts constituted theft was summarily dismissed.
History of Copyright Protection
Congress' power to provide copyright protection for authors stems from Article I, Section 8, Clause 8 of the Constitution: "Congress shall have the power. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries. . . ."(fn2) This grant of power is generally considered positive rather than limitative.(fn3) Thus, historically, under the 1909 Copyright Act states had the power to provide copyright protection above and beyond that which existed at the federal level. This issue was addressed in the 1972 Supreme Court case Goldstein v. California, where the court affirmed the states' power to provide copyright protection in the absence of a Congressional intent to pre-empt it.(fn4)
This state of affairs was short-lived. Congressional intent to pre-empt state power arrived with the 1976 Copyright Act,(fn5) which provided under Section 301 that "all legal or equitable rights that are equivalent to any of the exclusive rights...