Cleveland's Rock and Roll Hall of Fame and Museum sued commercial photographer Charles Gentile for trademark violation after he sold posters of his photo of its trademarked building. In a landmark 1998 appellate ruling, one of the three judges on the Sixth Circuit panel wrote, "Not only may Gentile take a photograph of the building, he can sell a photograph of it. The Lanham Act only prevents him from 'using in commerce' his photograph of the trademark in such a way as to cause a 'likelihood of confusion' in the marketplace."
Gentile won the case. Since then, says attorney Bert Krages, "these kinds of lawsuits have disappeared, although some entities still make threats."
For instance, the so-called Lone Cypress Tree near California's Pebble Beach Golf Course has supposedly been trademarked, and the previous owners of the property would threaten photographers and artists who might try to sell images of the 250-year-old tree. "To the best of my knowledge [the company] has never followed up on the threats because they have no legal basis," Krages says.
However, photographers can be prevented from shooting the Lone Cypress, because every vantage point is on private property, and owners can set their own rules within the confines of their property. This is why managers of fast food joints freak when you pull out a camera to shoot the milkshake machines, and why the interiors of places such as shopping malls, casinos, and the New York Stock Exchange are no-photo zones.
Some pros shake off the extra scrutiny. "I tend to shoot first and ask questions later," says Don Bartletti, a Los Angeles Times staffer who won the 2003 Pulitzer Prize for feature photography. He's been stopped from shooting in unexpected locations such as farm fields (proprietary growing techniques), grocery stores (proprietary shelving), and inside the Santa Ana Amtrak station (no particular reason). "The guy with the least amount of authority is going to be the most aggressive toward you," he says, speaking from experience. "I always challenge when I know I'm in the right."
It helps that Bartletti has a major news organization to back him up. For most, to call a guard's bluff or walk away is a tough choice. Especially if an organization's official policies-usually reasonable and lawful-differ from its practices on the ground. Is it worth the trouble to fight, even when you know you're right?
When challenged, private security guards have threatened citizen's arrest and police intervention.
That's what happened to photographer Pablo Mason in early 2005 when stadium security guards stopped him from shooting a picture of the outside of Petco Park, the Padres' baseball stadium in San Diego. Mason was walking around downtown, testing a Canon EOS-1Ds Mark II. He stopped in front of the new $474-million ballpark, which is 70 percent owned by the city.
He set up his tripod on the sidewalk and took a few pictures, when two stadium guards rushed out and told him he needed written permission to keep shooting. "They said Petco Park itself was copyrighted and the name was trademarked," he reports. "One said, 'You're obviously a professional photographer, and you could use the picture commercially.' We got into an argument and they threatened to call the police."
Mason thought he was right, but the guards' attitude made him doubt his knowledge. "The irony is that it's the pros who are familiar with the copyright and trademark issues. I'm not going to infringe on somebody's trademark, but an amateur might inadvertently."
Another irony: Petco Park doesn't show up in the online government database as copyrighted. "We don't have a policy restricting photography at Petco [Park]," says Jeff Overton, executive vice president of communications for the Padres. "You can't stop someone from taking a picture." Whoever accosted Mason, he adds, must have been "an uninformed employee."
Nor are there legal restrictions on photographing the name "Petco" on the building. "There is no trademark issue," says Stan Little, general counsel of Petco Animal Supplies, Inc.
Another photographer intimidated into giving up his civil right to take a picture. Even though, says attorney Krages, "a security guard probably has no right to enforce somebody else's copyright."
Especially when the copyright in question doesn't exist.