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Date: Tue, 3 Feb 1998 09:04:08 -0800 (PST)
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From: [log in to unmask] (Esther Polito)
Subject: photos
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I recall a brief discussion some time ago concerning cases in which the sale
of historic building photos was restricted. As I remember, the original
query was prompted by an objection raised by an institutional owner to the
use of photos of its "signature" building in such a manner. Anyway, Arts
Wire just reported a relevant Circuit Court of Appeals decision:

PHOTOGRAPHER WINS COPYRIGHT SUIT BOUGHT BY ROCK HALL OF FAME

CLEVELAND, OH-- On January 20, in The Rock and Roll Hall of Fame
v. Gentile Productions, the U.S. Sixth Circuit Court of Appeals
overturned a District Court injunction that not only forbade
photographer Charles Gentile from using the museum's images in his
posters but also ordered the posters destroyed.

In its decision the Sixth Circuit Court stated that "...when we
view the photograph in Gentile's poster, we do not readily
recognize the design of the Museum's building as an indicator of
source or sponsorship. What we see, rather, is a photograph of an
accessible, well-known, public landmark......As we have noted, we
find no support for the factual finding that the public recognizes
the Museum's building design, in any form, let alone in all
forms, as a trademark."

"Words can hardly express my feelings of relief and thankfulness
at the U.S.Sixth Circuit Court of Appeals' decision to vacate the
preliminary injunction brought against me by the Rock and Roll
Hall of Fame and Museum," Gentile told Arts Wire. "I know we have
only won a battle, not a war, but this ruling represents a victory
for every visual artists. It sends a clear message to businesses
and institutions all over the world about the importance of our
legal rights."

In 1996, the Rock & Roll Hall of Fame & Museum sued Gentile for
infringing its trademark by selling posters made from his photo of
the Museum's I.M. Pei building. Gentile's sunset photo of the
pyramid shaped museum against Lake Erie was captioned "ROCK N'
ROLL HALL OF FAME".

According to the text of the Circuit Court's decision, in 1996,
the District Court found that the Museum's building design was a
fanciful mark, and that Gentile's use of the Museum's building
design and the words, "Rock N' Roll Hall of Fame", were likely to
cause confusion. The District Court then ordered Gentile to
refrain from further infringements of the Museum's trademarks and
to "deliver . . . for destruction all copies of defendant's poster
in their possession."

"It's ironic that an institution that is supposed to be dedicated
to freedom of artistic expression, the rock industry, tried to
trample a young artist". Gentile quotes his attorney J.Michael
Murray as saying in THE PLAIN DEALER. (January 21, 1998)

In his appeal, Gentile argued that the district court abused its
discretion when it concluded that the Museum had shown a
likelihood of success on the merits for purposes of the
preliminary injunction. Specifically, Gentile argued that his
photograph of the Museum is not a trademark use of the Museum's
building design.  He also argued that his use of the words "ROCK
N' ROLL HALL OF FAME", is a non-trademark use which simply and
accurately describes his non-infringing photograph of the Museum.

"When you have to face a federal court without a lawyer, as I did
in the initial phase of the case you find out how important it is
to belong to a really good trade association," Gentile told Arts
Wire in response to a question about what the process was like.
"Through the darkest hours of this nightmare, ASMP (The American
Society of Media Photographers) was there for me with guidance,
support and assistance. I wish to thank the ASMP board of
directors for approving funds for an Amicus Curiae brief in the
support of my case."

He also stated that whatever the next phase of his legal battle
brings, he knows that along with his attorney J. Michael Murray
and his excellent legal team, he will have the backing of
thousands of his ASMP colleagues.

"We will continue to fight to preserve our Constitutional right of
artistic expression, and to maintain our ability to make a viable
livelihood as professional photographers," Gentile said.

Sources:

The full text of the decision of U.S.Sixth Circuit Court of
Appeals case No. 96-3759, ROCK AND ROLL HALL OF FAME AND MUSEUM, INC. V.
GENTILE PRODUCTIONS, is available at
http://www.law.emory.edu/6circuit/jan98/98a0020p.06.html

"Rock & Roll Hall of Fame Sues Photographer Over Building Image"
Arts Wire CURRENT --
http://www/artswire.org/current/1966/cur062496.html
June 24, 1996


**************************************************************
Esther Polito, Cultural Services Manager, City of Davis Parks and Community
Services Department, 23 Russell Blvd., Davis California 95616
phone: (530)757-5626  fax: (530)758-0204
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