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Tuesday, April 24, 2012

Laws In Collision

Artistic freedom versus licensing rights—the law is in need of a course correction before it runs afoul of itself and takes photographers into a black hole of uncertainty


A collision between copyright law and trademark law is a bit more unusual, although not entirely novel, and this is largely attributable to the fundamental purpose of each area of law.

Copyright law exists to encourage people to create. It does this by protecting the expression of ideas fixed in a media—which, for photographers, means when the image is fixed in film or saved to a memory card—and conferring upon the owners of the copyrights certain exclusive rights, including the right to reproduce their works, to distribute their works, to create derivatives based upon their works and to display their works publicly. In its simplest abstraction, copyright law protects the works themselves.

In contrast, trademark law exists to protect goodwill, and it does this by allowing the owner of a trademark to prevent others from using the same, or confusingly similar imitations of, the trademark in commerce. Trademarks and service marks—from a legal perspective, they're more or less the same—can be any word, phrase, symbol, design, color or combination of elements used to identify the source or origin of goods or services. Whether we realize it or not, we're constantly bombarded with trademarks in the course of our daily lives, and in many instances, trademarks save us time by allowing us as consumers to make quick decisions while being assured that our experiences with products or services will be consistent.

Trademark law protects not just trademarks and service marks, but also trade dress. Trade dress generally refers to product packaging or the visual appearance of a product. For example, trade dress can be the theme and décor of a restaurant if they're sufficiently distinctive.

Unlike copyrights, trademarks don't exist simply because they were created. In the U.S., trademark rights are acquired through use of a mark in commerce (other countries permit trademark rights to be acquired through mere registration). As the U.S. Supreme Court has explained, "The Lanham Act...does not exist to reward manufacturers for their innovation in creating a particular device...[and] has no necessary relation to invention or discovery." Rather, trademark law exists to "reduce the customer's costs of shopping and making purchasing decisions, and helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product."

Using Trademark Law To Control Images
Ordinarily, these two sets of rights—copyrights and trademarks—exist in relative harmony. Consumers generally understand that a photograph isn't associated with or sponsored by trademark owners simply because trademarks may appear in the image. However, as companies, sporting organizations and athletes have attempted to increase their licensing revenues, there have been challenges and attempts to use trademark law as a means of controlling images.

One of the early cases in this trend involved the I.M. Pei-designed Rock and Roll Hall of Fame Museum in Cleveland, Ohio. In 1996, the Museum owners sued photographer Charles Gentile for trademark infringement, claiming that the building design was protected by trademark law and that the sale of posters featuring Gentile's photograph of the building infringed those rights. The federal court presiding over the matter enjoined sales of the posters, and Gentile appealed. Two years later, the federal appeals court sided with Gentile, rejected the notion that the building was being used as a trademark and allowed the sales of posters to resume. In 1999, after three years of legal wrangling, Gentile emerged victorious.

 

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