Trademark defamation

[Kirk Gittings]

Are people following the legislation on Trademark Defamation that is in the Senate? This has possibly disasterous implications for the stock sales of "urban" street photography, architectural photography or anything that happens to include anywhere in the image a registered trademark.

www.stockphotographer.info/content/view/94/99/

[Ed Richards]

Thanks Kirk!

What a stinker - it has already happened with movies. Just having a trademark in the frame can cause legal trouble if the trademark owner does not like the association. Of course if they like, you charge them to be in the frame.:-) Even the Rock and Roll case, in which the photographer won, could be seen as a special case of the law that lets you take pictures of people, rather than as a general right to use trademarks in pictures. If you are interested, here is the case on my WWW site:

biotech.law.lsu.edu/cases/IP/trademark/rock_and_roll.htm

[Bruce Watson]

Oy.

When did it become "of the people, by the corporations, for the corporations" anyway? Lincoln must be spinning rapidly in his grave, as are the founders. Why don't the regressives just repeal the First Amendment and be done with it?

[Kirk Gittings]

"of the people, by the corporations, for the corporations"

I think it has been incremental and insidious. This could really impact "my retirement" ie my stock photo architecture inventory. People should write Orin hatch if this concerns them.

I am wondering now (I will have to check it out) if that is why the publishers of my recent retrospective were emphatically uninterested in any of my well known images of commercial architecture? Even though in the overall scheme of things these were many of my best images.

Ed,

I suppose this could even impact some of your best shots from New Orleans. Didn't some of them include some company logos?

[Frank Petronio]

So anybody who has vacation photos from Disneyland is exposed to litigation?

Stupid congress. Whatever happened to Jefferson's cycle of cleansing revolutions every twenty years?

[Frank Petronio]

My wife just got a very expensive digitizer for embroidery on her Bernina sewing machine. One of our first art projects is ripping off Disney characters. Plus, I taught myself how to draw Donald Duck years ago, so our napkins and sketchpads are littered with illicit characters...

I'm all trademark protection but uninforcable laws are stupid. Not only are our politicians corrupt, but they are lousy lawyers and impractical.

[Donald Brewster]

I don't know about Lincoln, but Andy Warhol is certainly spinning in his grave -- his foundation should be concerned about some of his old images anyway. The language in the statute does certainly seem to unecessarily limit artistic expression.

[Ralph Barker]

Here's a link for the actual text of the bill in PDF format.

Personally, I have trouble understanding the need for the law, as the apparent target issue should be covered by existing trademark infringement law (code or case law).

While there are exclusions for comparison advertising, criticism/parody, and "all forms of news reporting and news commentary", there is not an exclusion for coincidental inclusion of the trademark in an image of an event, person or object. So, I guess the concern to us centers around what constitutes criticism/parody and how "news reporting" is defined with respect to our area of interest. Regardless, it would seem that the deep-pocketed trademark owner is likely to win - along with the trial lawyers, of course.

[Ed Richards]

> I suppose this could even impact some of your best shots from New Orleans. Didn't some of them include some company logos?

A few - certainly the Coke cooler full of garbage would be a winner.:-)

There is a pretty broad exception for news, which as Ralph points out is preserved in the proposed bill, and which I think is pretty safe under the 1st amendment. I think Katrina could shelter under that.

More generally, however, there is no clear 1st amendment protection for fine art photography. People assume there is, but when you start looking hard at the cases, you find they break down into news - protected - and commercial - not so protected. Take a sneaky picture of a celeb and sell it to the Inquirer and you are protected. Make it into a fine art print and you hit the celeb's right to control publicity. It is not that the courts have rejected fine art, it mostly has not come up. There are some state laws on privacy that attempt to change the old rule that if you are in a public place and I fairly represent what you doing, you are fair game. Such a law could make work like Winogrand problematic, if the Court upholds it.

> I have trouble understanding the need for the law, as the apparent target issue should be covered by existing trademark infringement law (code or case law).

I am not teaching IP law any more so I have not picked apart the bill, but that was my first reaction as well. It may streamline the prosecution process.

Interesting that the media companies did not print much about how congress, democrats and republicans, transferred a lot of the intellectual commons to corporate control over the past 20 years. Think they might have had a conflict of interest?

> One of our first art projects is ripping off Disney characters.

Do not bet that the law is unenforceable. They have hammered lots of small businesses. The risk goes up a lot if you are on the WWW - there are services that troll for violations and harass you on a contingent fee basis. Since the fines and damages for willful violations are very high, they can squeeze a few thousand out of you so you can avoid utter ruin.

> Regardless, it would seem that the deep-pocketed trademark owner is likely to win - along with the trial lawyers, of course.

I teach my students to chant, Bad for society, but good for lawyers! when we discuss a particularly stupid law.

[Frank Petronio]

Thanks. We won't embroider Mickey onto anything!