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katharina_wang_schuster

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Posts posted by katharina_wang_schuster

    Legal Question: photography of public art

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    <P>Regarding the Gentile case: The Sixth Circuit court determined in

    1999 that the Museum did not establish a strong likelihood of success

    on the merits and, therefore, vacated the preliminary injunction, 71

    F. Supp. 2d 755 (1999). The Sixth Circuit reached this conclusion

    because it determined that on the record before them, plaintiffs

    <B>had not used their building design as a trademar</B>k. Gentile's

    poster was thus a <B>fair, non-infringing use where the Museum failed

    to demonstrate actual confusion and secondary meaning.</B> The court

    analyzed the claim purely under federal trademark law. The question

    of First Amendment protection is still in debate.</P>

    <P>Personal opinion only. </P></BODY>

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    Legal Question: photography of public art

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    Posted

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    <P>My husband is a photographer. The following is my personal opinion

    only and not intended to be a legal advice. All the cases and law

    review article cited below can be found in any law library. For more

    discussion on the subject of photography and copyright protection,

    see Jennifer T. Olsson, "Rights in Fine Art Photography: Through a

    Lens Darkly", 70 Tex. L. Rev. 1489 (1992). </P>

    <B><P>Question presented: </B>Can public art be photographed and sold?

    </P>

    <B><P>Short answer: </B>public art may be photographed unless it

    constitute main motif of picture and is used for commercial

    purposes.</P>

    <B><P>Case in point: </B>Rock & Roll Hall of Fame and Museum,

    Inc. v. Gentile Prods., 934 F. Supp. 868 (N.D. Ohio 1996).</P>

    <P>Cleveland photographer Chuck Gentile photographed a downtown

    museum against a Lake Erie sunset, made it into a poster, entitled

    it "THE ROCK AND ROLL HALL OF FAME AND MUSEUM IN CLEVELAND," and

    offered it for sale throughout the metropolitan Cleveland area. The

    Rock & Roll Hall of Fame and Museum, however, was less than

    thrilled. It sued to enjoin all publication and distribution of

    Gentile's poster on the grounds that it violated the Museum's

    trademark rights in both the building and the name, "ROCK AND ROLL

    HALL OF FAME."</P>

    <P>Gentile asserted that he did not need the Museum's permission to

    sell the posters because the building is in a public place. Sounds

    familiar? Well, unfortunately for Gentile, the United Stated District

    Court for the Northern District of Ohio disagreed and enjoined

    Gentile from selling and distributing his poster. The court found

    a "likelihood of confusion" between Gentile's poster and the Museum's

    trademark that would cause irreparable damage to the Museum's

    licensing program and revenues. </P>

    <P>Analysis: Generally, photography of buildings permanently situated

    out-of-doors in public place not infringement unless it constitutes

    main motif of picture and is used for commercial purposes. Gentile

    lost his case because the Museum's building is subject to trademark

    protection. This case was decided in the State of Ohio. Though I

    haven't found a similar case decided in the State of Washington, it

    is my opinion that a court is likely to apply the same standard to

    photography of a sculpture that is permanently displayed at a public

    place. In other words, if the Troll Sculpture is subject to trademark

    protection, it would be infringement to sell photographs of the Troll

    Sculpture.</P>

    <P>Even if the Troll Sculpture is not subject to trademark

    protection, the sculptor would have the right to publicly display his

    work under the copyright law. However, if the Troll Sculpture does

    not constitute main motif of the overall composition of the

    photograph, it is likely, upon finding a "fair use" exception, the

    court will find the sculptor's right not being infringed. In this

    case, the photographs may be sold commercially because when the

    location of the camera and choice of time and season result in an

    artistic composition, copyright extends to the <B>overall

    composition</B> that results from the photographer's exercise of

    judgment, skill, and creativity. </P>

    <B><P>Conclusion: </B>IMHO, commercial sale of the photographs of the

    Troll Sculptor may infringe on that sculptor's right. What is more,

    you have per se notice of the artist's intention, "it would not be

    legal for you to sell photos of the troll." It would be prudent,

    therefore, to contact the sculptor and obtain a license to sell the

    photographs of the Troll Sculpture.</P>

    <P>"A century or so ago, Paul Cezanne reached into a fruit basket and

    said, 'With this apple, I will astonish Paris.' So he did. He painted

    a picture of that apple so magnificent that it takes the breath away.

    If he tried that today, he'd probably have the apple growers suing

    him for royalties. Sillier things have happened." - - Dan Lynch,

    Artist a Loser at the Track, Times Union (Alb.), July 28, 1996, at

    B1. </P>

    <P>Personal opinion only. </P>

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