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Question about Fair Use, Public Domain, and Copyrights [Archive] - DVD Talk Forum
 
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View Full Version : Question about Fair Use, Public Domain, and Copyrights


heimerSWT
03-15-06, 10:09 AM
If my family and relatives wanted to put a personal photo of an historical building on a t-shirt, would that be violating any laws?

Would it be any different if the picture (still a personal digital photo of the same building) is altered in Photoshop, adding faces of different people in the family?

This specific question is regarding a t-shirt for an annual family reunion, being held in Podunk, TX. The building is an old jailhouse, which apparently has been turned into a museum (a very small museum...think of a lighthouse, the front facade being only about 20ft across).

Anyways, my uncle said he "did some calling around" and found out it is protected under copyright, and can't be used on the t-shirts. Is this really the case, or did he talk to the wrong person?

Deftones
03-15-06, 10:35 AM
Do you honestly think you are going to get sued? If this is for family use and not for resale, I say do it.

al_bundy
03-15-06, 10:39 AM
the biggie in these things is reselling IP. many places might not do it just to avoid any problems.

I think it also depends which building you want to put a picture of. If it's something like an old church or courthouse, you are probably OK. If it's something owned by a private entity like a corporate HQ than you may have problems.

NCMojo
03-15-06, 10:46 AM
A building can be copyrighted?

Tracer Bullet
03-15-06, 10:50 AM
Completely legal. As NCMojo pointed out, a building can't be copyrighted.

heimerSWT
03-15-06, 10:56 AM
Do you honestly think you are going to get sued? If this is for family use and not for resale, I say do it.
I am not worried about getting sued at all. In fact, I thought it was hilarious my uncle even called to check on the legality of it. For one, 99% of the people who will be in town for this reunion live on the west coast and the midwest.

I just wanted to make sure he was incorrect in what he was told...because I also thought it was impossible to copyright a building. I could see if it was someone else's photo, which was copyrighted, and how that might not be legal. But if it is a personal photo, I don't see how it would be possible.

My family is large enough that we have a fairly active message board, and I would love it if there is some link that I can provide that would prove the legality of this. Is there anything I could direct him to?

Numanoid
03-15-06, 11:00 AM
Ask him to cite his source.

heimerSWT
03-15-06, 11:09 AM
Hmmm.. http://www.utsystem.edu/OGC/IntellectualProperty/architec.htm

Documents as well as the building can be copyrighted.

Deftones
03-15-06, 11:12 AM
Documents, as in, architectural designs, but probably not the building itself.

NCMojo
03-15-06, 11:18 AM
Documents, as in, architectural designs, but probably not the building itself.
If I read this (http://lcweb.loc.gov/copyright/circs/circ41.pdf) right, the copyright would apply to the design of the building, which would include any photographs taken.

I'll be a monkey's uncle. http://www.flowerchat.com/forums/images/smilies/more/munky.gif

Morf
03-15-06, 11:23 AM
If I read this (http://lcweb.loc.gov/copyright/circs/circ41.pdf) right, the copyright would apply to the design of the building, which would include any photographs taken.

If you take a photo of a public building, you can do anything you want with said photo. I read it somewhere once. Way too lazy to look for it again.

So, I was of no help.

Th0r S1mpson
03-15-06, 11:27 AM
I believe there are a lot of rules about this, including how prominently the building is displayed and the designated use of that building. I can't find anything on it though.

For instance, studios don't pay the owner of every building in NY when they show a flyover of the city, or sell prints of a landmark or skyline, nor when the subject is simply located in front of a building (in a public place).

Not sure about your specific case.

Numanoid
03-15-06, 11:28 AM
So photos of the Chicago skyline, for instance, pay royalties to every single building pictured? Yeah, right.

Numanoid
03-15-06, 11:29 AM
BTW, I was responding to NCMojo, and Thor sneaked in.

heimerSWT
03-15-06, 11:36 AM
Instead of Chicago and New York, I was thinking along the lines of the casinos in Las Vegas. I see so many calendars, posters, tshirts, and other things that show an image or a likeness of the casinos--and the strip in general (which shows the hotels captured in the photo).

NCMojo
03-15-06, 11:39 AM
So photos of the Chicago skyline, for instance, pay royalties to every single building pictured? Yeah, right.
Well, here's what the United States Copyright Office has to say:

An original design of a building embodied in any tangible
medium of expression, including a building, architectural
plans, or drawings, is subject to copyright protection as an
“architectural work” under Section 102 of the Copyright Act,
17 U.S.C., as amended on December 1, 1990. The work
includes the overall form as well as the arrangement and
composition of spaces and elements in the design but does
not include individual standard features or design elements
that are functionally required.

However, heimerSWT...
Architectural works created on or after December 1,
1990, and any architectural works that were unconstructed
and embodied in unpublished plans or drawings on that date
are eligible for protection.

So you should be in the clear. :up:

Th0r S1mpson
03-15-06, 11:39 AM
Well, I htink intended use would come into play as well.

Even though they <i>may</i> be "copyrighted," most Casinos would see that as free publicity and not do anything. On the other hand, if someone made a "_______ Casino Sucks" shirt with a photo of it, maybe they would have something. Not sure though.

Are you making these shirts for profit?

wlmowery
03-15-06, 12:04 PM
As many have indicated you can indeed copyright the appearance of a building thus preventing the ability to mimic the design in other tangible expressions. The reason this was changed related to a case where a rival design house accessed a building to obtain dimensions and design elements and then recreated their own nearly identical building based on the recorded specs. The owner of the design in the building sued to protect the copyright in the design specs and lost since the alleged infringer did not have access to the copyrightable content (the design specs). In response, the act was modified to allow for copyright to attach to the final building as well as the design specs preventing such a result in future cases.

The question of use of building images is a very unsettled matter. I do have clients who try to control the commercial exploitation of images of their more "famous" structures. For the most part, they are rather successful in limiting and controlling such uses.

ChiTownAbs, Inc
03-15-06, 09:16 PM
My family is large enough that we have a fairly active message board, and I would love it if there is some link that I can provide that would prove the legality of this. Is there anything I could direct him to?

OMG

Buford T Pusser
03-15-06, 10:21 PM
I would say you're okay on this old building.

A few years back the Rock and Roll Hall of Fame and Museum sued a photog that was selling a photo of the building IIRC citing the original design was under copyright.

The photog lost the case but I believe he won the appeal.

Buford T Pusser
03-15-06, 10:22 PM
Here's an article:


http://www.jurisnotes.com/IP/articles/trademarkblues.htm




Roll Over Beethoven, I've Got Trademark Blues Today

By Jim Astrachan

Photographers, agents and publishers are up in arms over the latest legal trend that is growing like bacteria within their industry. New York's Chrysler Building, San Francisco's Transamerica Tower, Daytona Beach, and Cleveland's Rock and Roll Hall of Fame have all been the subject of trademark challenges brought by their owners against photographers and publishers who incorporated original images of each of these properties in posters or advertisements. Reliable sources say that the Dallas Chamber of Commerce has even claimed trademark rights in the Dallas skyline. Will Camden Yards and the Legg Mason Building be next?

Of the reported cases, my favorite is a suit brought by Cleveland's Rock and Roll Hall of Fame against photographer, Charles Gentile, because he sold posters bearing his photo of the Museum and the moniker "Rock 'N Roll Hall of Fame". He signed the posters and did not mention the Museum anywhere on the poster but yet he was sued. The basis of the suit was trademark infringement and unfair trade competition. In essence, the Museum attempted to obtain a monopoly to commercialize any image of its distinctive building.

The Museum alleged that its I.M. Pei-designed building was unique and inherently distinctive, and the court did not disagree. In fact, the Museum had even registered the building's design for trade and service mark purposes with the State of Ohio. Similar applications for protection of the design were pending with the United States Patent and Trademark Office. The Museum registered the service mark, THE ROCK AND ROLL HALL OF FAME in 1988 with the PTO.

The Museum contended it had actually used THE ROCK AND ROLL HALL OF FAME and its building design as trademarks. By selling the poster bearing the words ROCK 'N ROLL HALL OF FAME and the photo of the Museum, Gentile, the Museum alleged, had infringed its marks. Gentile claimed that he was entitled to sell photos of the building and that his photo did not serve as a trademark.

Believing that sale by Gentile of a poster bearing the design of the building, and a very close imitation of the service mark, was likely to confuse consumers into believing that the posters either originated with the Museum or that the Museum had authorized the posters, a U.S. District Court sitting in Cleveland enjoined the sale of the offending posters.

Key exhibits in the Museum's case were a $20 poster sold by the Museum featuring a photo of its unique building at sunset and postcards and t-shirts with varied depictions of the building. The Museum's poster was markedly different from the photographer's, as it featured an elevated photo of the building taken from afar on the Museum's opening night. Red carpet led from the Museum's front door and all the lights of the Museum were lit. In contrast, Gentile's photo was shot from a closer distance and from ground-level when the Museum was closed. It was merely a photo of a distinctive building that had become a Cleveland landmark. Both photos were of the highest artistic quality, the court found, but they were very different from one another.

The Museum's poster was clearly marked to show that its purveyor was the Museum. Gentile's photo was marked with his name and the name of his production company. The t-shirts and postcards from the Museum's gift shop contained photos or drawings of the building. Some photos were similar to the photo on the Museum's poster, but others depicted totally different views of the building.

Appealing issuance of the injunction, Gentile argued that his photo on the poster was not a trademark use of the Museum's building design and his use of the words ROCK 'N ROLL HALL OF FAME was merely descriptive. The Court bought the argument.

The Court reasoned that when it viewed Gentile's poster and his photo of the Museum, it did not readily recognize Gentile's photo of the Museum as an indicator of a source of sponsorship. In other words, it was merely a photo of a well-known, well-recognized building.

Nevertheless, it is possible for the Museum or any other owner of a landmark property to use its building to serve as a trademark. But where the court rightfully struggled was over the lack of evidence presented at trial that people had cause to recognize the building's design as a trademark. And it was unlikely that the design in this case would function as a trademark because of the inconsistent use of the design of the building on the various items sold by the Museum.

The Museum sold postcards and t-shirts bearing the design of the building and each was different from the other. On some products the front of the building was photographed or drawn; on others it was the rear of the building. On posters, still another photo was used. There was no consistency. As a result there was not a consistent and distinct commercial impression created by the Museum as an indicator of a single source of origin or sponsorship.

Or to say it another way, the Court would not allow the Museum to establish a trademark in every conceivable photograph that would depict the visage of the Museum's famous building. As the court held:

Consistent and repetitive use of a designation as an indicator of source is the hallmark of a trademark.

Without consistent and repetitive use secondary meaning cannot be established, and without secondary meaning there will be no trademark.

Any owner of a famous building, whether Camden Yards or the Chrysler Building, who wants to establish trademark rights in its property should heed this ruling. The owner should select the absolute best visage, or two, and not deviate from reproduction and exploitation of this vantage point on commercial merchandise. Then, when an infringer markets a commercial product bearing a photo similar to that used by the owner on its products, or in connection with its services, or uses that photo in an ad, the trademark's owner will be able to enforce its trademark rights because secondary meaning will be established.


--------------------------------------------------------------------------------

James B. Astrachan is a principal at the Baltimore firm of Astrachan, Gunst, Goldman & Thomas, P.C. Mr. Astrachan is a former chair of the Maryland Bar Association's Intellectual Property Law Committee.

NCMojo
03-15-06, 10:28 PM
He is in the clear. As long as the building was built before 1990, it cannot be covered by copyright. Since he called it the "old jail"... I think he's good to go.

heimerSWT
03-16-06, 12:54 AM
I'm dealing with the danol equivalent when going against my uncle on this issue. :(

Here was my response to him today, while considering some of the stuff I read near the beginning of the thread:

I'm just shocked to hear someone is actually trying to claim a copyright on an actual building. 99% of these shirts wouldn't even be worn within 300 miles of Pale Pint [the town is actually called Palo Pinto--my family is easily humored] anyways! And I wear my previous reunion shirts to sleep. Alone. In the dark!


These were his exact words, in response to my suprise the jail "museum" could not be placed on the t-shirts:
Are you kidding. Larry the cable guy on Blue Collar Comedy Tour has the saying "Get er Done" copyrighted. We could do them IF they were not sold but even if I just did cover the cost of the shirts, it would still be considered selling them. Besides, the reunion is in Lone Camp and NOT Palo Pinto. We could get a brick jail as long as it isn't made from stone or resembles the Palo Pinto jail. It won't be hard to get a jail for you. I have enough clipart to create one if you want to go that way. Let me know.
So embarassing. :( At least I know he is related only because of marriage.