• by Wendy Davis , Staff Writer @wendyndavis, January 11, 2011

The World Erotic Art Museum in Miami has sued photographer Thomas Hawk for $2 million for posting some pictures he took of the museum's art to his Flickr account, Hawk reported this afternoon.

In a complaint filed Monday in federal district court in the Southern District of Florida, the museum alleges Hawk is engaged in unfair competition -- even though Hawk says he isn't selling the pictures. The museum also alleges that Hawk's photos infringe on the museum's trademark -- apparently on the theory that visitors to Hawk's page will conclude that he is affiliated with the museum.

Additionally, the museum asserts that Hawk committed trespass by "acting outside the terms of the license for admission." The court papers say that the museum has a sign by the entrance banning professional or flash photography. But Hawk said in a blog post that the museum knew he was taking shots and that a guard specifically gave him permission to do so after inquiring about whether Hawk intended to publish them in a book. (Hawk's blog post outlining the lawsuit and his response went up on Tuesday, but had been removed by late afternoon; attempts to reach him were unsuccessful.)

Legally, the complaint raises a few questions that don't have easy answers. Among the biggest is whether a sign purporting to ban professional photography is enforceable.

Hawk said he never saw that sign. What's more, given that Hawk has said he has no intention of selling those pictures, it's not clear that they would be considered professional photographs.

Regardless, the museum appears to have complained to Flickr as well. As of this afternoon, Flickr seems to have removed the images due to notice of copyright infringement.

Even though taking a photograph of a work of art doesn't infringe on copyright under the federal statute, the museum is claiming copyright infringement under "common law." It's not clear whether this type of claim is valid, or whether it would be preempted by the federal copyright statute.

From a practical level, it's hard to see how the museum is harmed by the photos, especially since it apparently allows "amateur" photography. Perhaps the museum is under the impression that people will be less likely to visit in person if they can view some photos of the artwork on Hawk's Flickr page. If so, there doesn't seem to be much evidence to support that view; after all, people line up every day to get into exhibits of original work regardless of how many times they've seen reproductions.