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Thursday, May 24, 2007

Trademark Two-Step

Changes in the law could make it more necessary than ever for professional photographers to pay attention to what's in the frame before shooting

Trademark Two-StepNew legislation now winding its way through Congress may change the way photographers do business. Called the Trademark Dilution Revision Act, the bill has civil liberties and arts groups representing photographers, illustrators and other artists concerned that First Amendment protections now given to images showing famous corporate logos could be eliminated. Photographers may have to think twice before taking a picture of a naked man standing on top of McDonald's golden arches or kids kicking Coca-Cola cans around in the dirt or a runner throwing her Nikes into the garbage.

When you shoot pictures showing a corporate logo, the company may not like how its symbol or product is displayed. But you know you're safe from a lawsuit if the image falls into one of these categories: “fair use” (a set of guidelines allowing use of copyrighted material); news reporting or editorial commentary; and non-commercial use.

These exceptions are found in the Lanham Act, which spells out the rules governing trademark use and protection, and the Federal Trademark Dilution Act of 1995, which gives special protection to famous trademarks against two kinds of dilution: blurring, or making the connection cloudy in a consumer's mind between the mark and the product; and tarnishment, or using the mark in an unsavory manner.

Last year, when the House of Representatives took up and passed the Trademark Dilution Revision Act, also known as H.R. 683, the non-commercial use exemption was left out. The bill is meant to further clarify the 1995 law by restating the legal standard for famous marks, along with the definitions of blurring and tarnishment.

“So if you had a corporate logo incidentally in a photograph and if it was famous enough to fall under trademark dilution, then you'd fall into the statute and could be on the receiving end of a lawsuit,” says Stephen Morris, who works in the Copyright and Government Affairs department of the Professional Photographers of America (PPA).

That was until a coalition of groups including the PPA, the American Library Association and Public Citizen went to the Senate Judiciary Committee in February, asking that the bill be amended to get the non-commercial use defense back in. The committee members agreed to some of the changes, which included restoring non-commercial use. The Senate approved the amended bill unanimously in March.

“We understand the need for companies to protect intellectual property, and their logos are intellectual property,” Morris says. “But professional photographers also need to have the ability to serve their clients.”


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