Blog Series: One Man’s IP Is Another Man’s Art (Part I)

By August 25, 2014Copyright, Trademark

We are proud to picture the fabulous artwork of Leigh Ann Agee in this blog entry.  Leigh Ann is a Nashville-based artist and creator of the Girl In the Moon series.  Her artwork, notecards and T-shirts are available at this link.
We love our local artists and have had many clients approach us with regard to using a third party’s intellectual property — whether it be a trademark, a landmark, or a famous building — in their own creative work.  Is it “allowed”?  What are the intellectual property issues involved?  In Part I of this two-part series, we will discuss the use of architecture and landmarks in an artistic work.  Part II will address the use of another’s trademarks in an artistic work.

© 2011 Leigh Ann Agee.  All Rights Reserved.

As you may know, U.S. copyright law protects architectural works.  The owner of a copyrighted architectural work, however, cannot prevent “the making, distributing, or public display of pictures, paintings, photographs or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”  Many “famous” buildings and landmarks are copyrighted architectural works.  Even if these buildings are protected, however, U.S. copyright law expressly allows others to make and distribute paintings or photographs of the same so long as the building is ordinarily visible from a public place.  The law also allows you to paint or photograph a building located on private property that is visible from a public place (whether that public place is a street or piece of property).  So, in the above example, artist Leigh Ann Agee rightfully depicts Nashville’s famous “Batman Building,” as it is located in and viewable from a public place.

Now we turn to U.S. trademark law.  As a reminder, a trademark indicates the source of a good or service.  In other words, a logo, as it appears on a mug, a computer, or a watch, serves as an indication that such good comes from a specific source — think the green Starbucks siren, the Macintosh apple logo, or the Rolex crown logo.  You are probably familiar with logos that incorporate famous buildings such as city landmarks, museums, and university landmarks.  In such instances, the fact that a person or an entity owns a registered trademark that shows an outline of a building does not give that owner the ability to stop anyone from painting or depicting that building from every angle in artwork or from using an image of the building in a way that is not a trademark use (where there is no indication of source or sponsorship).  That issue was addressed in the case Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions.  In that case, the Rock and Roll Hall of Fame in Cleveland, Ohio, brought a suit against a photographer for selling posters of the Rock and Roll Hall of Fame.  The poster consisted of a photograph of the museum against a sunset with the words ROCK N’ ROLL HALL OF FAME — CLEVELAND underneath the photograph.  The museum had a registered trademark, THE ROCK AND ROLL HALL OF FAME, and claimed trademark protection in its building, as it also owned a trademark that pictured the outline of the building.  The court ultimately held that the photographer’s use of the building in his work did not amount to trademark infringement.  Though the evidence showed that the public recognized the building as a landmark, there was no evidence that the building was used as an indicator of the source of any particular goods or services, and thus the museum had no protectable trademark in the building design, despite its registered trademark.

Of course, it is always best to err on the side of caution and consult with an attorney if you have a question related to the use of another’s intellectual property.  But if you are contemplating using an architectural work in your next creative work, keep these basic rules in mind: make sure the building you are depicting (and the view from which you are depicting it) is located in a public place (or can be seen from a public place), and be sure that you are not using a building to indicate the source of your goods or services.

Stay tuned next month when we address the use of another’s trademark in your artistic works.