Ha! I’ve trademarked the facepalm gesture. I expect to make billions from the NYSE trading floor alone in the next few rounds of financial crisis. Excellent!

That’s what these guys are counting on. They know they have no legal standing, but they have deep pockets and you don’t. Essentially, they are buying the legal system. So what’s new?

In Rock and Roll Hall of Fame, the plaintiff asserted trademark rights in the design of the building which houses the Rock and Roll Hall of Fame in Cleveland, Ohio, and claimed that defendant’s poster featuring a photograph of the museum against a colorful sunset was a violation of its trademark rights. 134 F.3d at 751. This court, with one judge dissenting, reversed the judgment of the district court which granted plaintiff’s request for a preliminary injunction. After reviewing the evidence, the majority concluded:

In reviewing the Museum’s disparate uses of several different perspectives of its building design, we cannot conclude that they create a consistent and distinct commercial impression as an indicator of a single source of origin or sponsorship. To be more specific, we cannot conclude on this record that it is likely that the Museum has established a valid trademark in every photograph which, like Gentile’s, prominently displays the front of the Museum’s building.

Trademark gives a brand/company the exclusive right to present themselves as such to consumers. You can’t build a camera and sell it as the “Leica X12345″ because you’d be tricking consumers into thinking that your product is made by Leica, a company known for making high-quality stuff. There is no “fair use” here: If Group X could claim that you are fooling people by saying/implying that your stuff comes from Group X, then there is a trademark violation (if Group X has trademarked their name, logo, slogan, whatever).

Copyright gives a person/company the exclusive right to decide who gets to make copies of their writing, images, etc. You can’t print and bind and sell copies of Harry Potter books because the publisher (or J K Rowling or someone) invested time and effort and money and resources into producing that work, so no one can make copies without their permission. Here, there is fair use: If your unlicensed copies will not hurt the sales of the licensed copies, if they’re only a small piece of the whole, for educational purposes, etc, then you’re probably ok.

Photography rights are mainly a matter of property and contract (except for when it comes to taking pictures of military bases and other supposedly national-security-critical things, or when it comes to taking pictures of copyrighted things if your pictures could conceivably lower demand for the real thing). If you are in my house, I can say “While you are on my property, you may not take pictures. And you must hop on one foot, and never utter words that contain the letter Q. If you disobey this, then I can ask you to leave. If you do not leave, I will call the police”. It’s my property, I don’t have to let you be in there unless I feel like it. Similarly for contracts: If you sign a piece of paper that says that, in exchange for something from me, you will / will not do X Y and Z, then if you disobey those terms you violate the contract. Again, there is no fair use here. “I will give you a ticket to this show if you pay me money AND if you agree to not take photos” means that if you take photos, you broke the contract.

Can the owners of a place claim trademark of the whole place, and claim that their trademark is being violated whenever a photo of the place is published (thus claiming that anyone who is showing a photo of the NYSE is an official representative of the NYSE)? Probably not. But crazier things have been tried in the IP world ;]

I think people ought to grab that photo and post it in as many places as possible.

Most people completely do not understand IP law, what Copyright or Trademark mean, and what they are intended to protect.

That photograph of the trading floor doesn’t have any recognizable NYSE logos in it. It’s just a bunch of LCD monitors and people in funny blazers with Barclays written on the back.

Can we please kill all the lawyers already?

Photographers allowed onto the trading floor are given pretty strict ground-rules about usage that must be agreed to before they can create images on-site, and as the NYSE doesn’t sign a property release, they do have the right to control the use of the likeness of their property and images taken on their property as outlined in the agreement photographers sign to be allowed access to shoot on the floor.

If you read the C&D, it specifically states their objection is that the specific placement of their properties are being used in conjunction with a negative news story that has nothing to do with the NYSE.

There are MANY images of the NYSE being used for journalistic purposes every day – and the NYSE doesn’t challenge images in this manner if the article is about the NYSE, or if its about the market in general and specifically cites the NYSE – even if its negative.

This is a wire-photo, so the photographer certainly isn’t to blame for getting it wrong, the use of his image along with a story ABOUT the NYSE would clearly be fair use for journalistic purposes – and Taking Points Memo probably thought this would be a fair use and most likely acted in good faith; but that intention doesn’t make it fall under fair use. Just being a journalistic enterprise does not automatically make everything fair use – it has to be specifically relevant. TPM just dropped the ball on this one.

I’ve been a professional shooter for over 25 years, and spent over 15 of that as a photojournalist – I’m not taking any sides here (except what is correct by the copyright statutes) – Its important to have a good understanding of copyright and what fair use really means and includes. By misunderstanding it we only serve to weaken our rights when they come into question.