To whom does this image belong?

by Daniel Buchholz

December 9, 1996

In partial fulfillment of the requirements of CS 3604, Fall 1996.

As photographer Charles Gentile made his daily trek at sunset to the Rock and Roll Hall of Fame to capture a photograph, he had no idea about the controversy that he was about to embroil himself into. He got his shot, a beautiful shot of the sun setting on Lake Erie, with the Hall of Fame framed in the foreground. On April, 1996 a lawsuit was filed against photographer Charles Gentile by the Rock and Roll Hall of Fame and Museum. The lawsuit by the Hall of Fame was brought about by the fact that Charles Gentile was selling postcards and posters of photographs that he had made of the museum. The judge found in favor of the Museum, and Charles Gentile was forced to stop selling his photographs. But this sparked a controversy over ownership of images of building. The Rock and Roll Hall of Fame and Museum was financed in part with public money, both through 10 million in direct financing and through underwriting the bonds issued. The Rock and Roll Hall of Fame and Museum was designed by the famous architect I. M. Pei and has a trademark covering it.

Trademarking a building has normally been used to prevent others from building a duplicate, for example McDonald's has the golden arches trademarked, but it has not been used to protect the image of the building. As it turns out, fewer than 100 buildings in the United States are officially trademarked. It should also be noted that when a building is copyrighted then pictures and other reproductions are explicitly protected. This case has been described as a, "clash between First Amendment rights, trademark laws and copyright laws."(1)



The ruling sets some disturbing precedents. The most obvious one is that this is in effect saying that things such as skyline panoramas would require the consent, and the possibility request of royalties, of every single building in the shot. That itself has caused concern among the artistic community. The support would be stronger in Gentiles direction though if it had been a purely artistic picture. If he had not been selling it then his actions probably would fallen more under the First Amendment. It might have even been looked on favorably, as in the case of the famous Andy Warhols' famous portrait of the Campbell Soup Cans, which also did not have the permission of the trademark owner.(2) However in this case the Hall of Fame is a non-profit organization that has specific contracts regarding

Then there is also the just the plain moral problems, that a building built with public funds and backing could be withheld from the people. I could go the Mall in Washington DC and take a picture of any one of a number of public buildings and sell my pictures. Even with publically backed foundations like the Smithsonian, no one has gone and said that you cannot make money off their images. Does it make any difference then if the building was built using state, as opposed to Federal, funds? Charles Gentile is choosing to oppose the ruling against him, but a lot of his case is all in the eye of the beholder. Because of the ways the laws are written he will have to show that the main value of his photograph is related to his skill, and not to the building in the background.

Politicians within the state government of Ohio seem to think this situation is wrong. One of them, Rep. Gene Krebs, is introducing legislation to prevent such an incident from occurring again. He is even going to make the attempt to extend the statue of limitations back to before funding was granted to Rock and Roll Hall of Fame. Passing the bill would prevent this from occurring again, but there is some doubt as to the feasibility of postdating of the legal requirements of the bill. Rep. Gene Krebs said the legislation would not infringe on the trademark of the building, but notes that Charles Gentile shot the picture from a public sidewalk. In the bill he will modify the way the law deals with trademarks, differentiating between whether the picture has been taken from the property itself or from public property. In addition the bill has an attached rider that dictates future publically funded buildings would not be permitted to file trademarks on their designs.

This incident raises a lot of interesting questions, many of which will take some time to sort out, because of the lack of speed in the judicial and legislative system. At the very least it hopefully will have other states look at their policies and hopefully revise them before another incident like this arises, as it will surely will. Hopefully that and a closer look into the differences and factors between the copyright and trademark laws that are applicable to this case will occur.



Bibliography

(1) Lawmaker Running thin line with legislation, http://www.sddt.com/~columbus/Files3/9610093.html, accessed November 16, 1996
(2) Photographer Fights Museum over poster, http://www.arlington.net/news/doc/1047/1:NATIONC/1:NATIONC061596.html, accessed November 16,1996



For any comments mail -Daniel Buchholz © 1996.