Nancy Wolff is a lawyer who specializes in intellectual property law and serves as legal council for the Picture Archive Council of America. In her new book The Professional Photographers Legal Handbook, published by Allworth Press ($24.95), Wolff answers some of the hard questions about the law and photography. Photo District News provides an excerpt from her chapter "What Photographers Need To Know About Trademark."
...Increasingly, photographers and photo libraries are complaining that their clients are receiving cease and desist letters from manufacturers of the objects depicted in photographs, sometimes alleging a violation of trademark. Trademarks are difficult to discuss with black and white rules as the nature of a trademark is not in the protection of the design or art, but in the use of the object as the identifier of the source of goods.
The design of a building does not serve as an effective trademark. The Rock & Roll Hall of Fame and Museum in Cleveland failed to prove that it used its building design as its trademark in Rock & Roll Hall of Fame & Museum v. Gentile Prod. against photographer Chuck Gentile who sold a poster of the building. The museum had never used any particular photograph or consistent view of the building in a consistent manner to identify a source of goods. The photographer did not use the image in such a way as to indicate that the poster was authorized by the museum. The building was not a trademark, and the use by the photographer was not a trademark use. Therefore, there was no consumer confusion.
The Rock & Roll Hall of Fame initially sought a preliminary injunction from the District Court preventing Gentile from selling the poster, claiming that the sale of the poster violated the museum's trademark rights in the building and its name. On appeal, the decision was reversed by the Sixth Circuit, which threw out the injunction. The court's decision was strongly worded to suggest that the Rock & Roll Hall of Fame was unlikely to prevail after a trial on its claim that its building was used as a trademark and that the poster violated any trademarks rights...
Read the entire article on Photo District News.
...Increasingly, photographers and photo libraries are complaining that their clients are receiving cease and desist letters from manufacturers of the objects depicted in photographs, sometimes alleging a violation of trademark. Trademarks are difficult to discuss with black and white rules as the nature of a trademark is not in the protection of the design or art, but in the use of the object as the identifier of the source of goods.
The design of a building does not serve as an effective trademark. The Rock & Roll Hall of Fame and Museum in Cleveland failed to prove that it used its building design as its trademark in Rock & Roll Hall of Fame & Museum v. Gentile Prod. against photographer Chuck Gentile who sold a poster of the building. The museum had never used any particular photograph or consistent view of the building in a consistent manner to identify a source of goods. The photographer did not use the image in such a way as to indicate that the poster was authorized by the museum. The building was not a trademark, and the use by the photographer was not a trademark use. Therefore, there was no consumer confusion.
The Rock & Roll Hall of Fame initially sought a preliminary injunction from the District Court preventing Gentile from selling the poster, claiming that the sale of the poster violated the museum's trademark rights in the building and its name. On appeal, the decision was reversed by the Sixth Circuit, which threw out the injunction. The court's decision was strongly worded to suggest that the Rock & Roll Hall of Fame was unlikely to prevail after a trial on its claim that its building was used as a trademark and that the poster violated any trademarks rights...
Read the entire article on Photo District News.
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