Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I have a question. Do I need to ask permission to publish a picture that I took that contains several local buildings and a city cultural monument? I'm so glad you asked. The short answer is "probably not". Here's the scoop. 

If you took the picture, you own the copyright (with exceptions, if you were hired to take it). As for the copyright in the buildings, it's true that architecture created after 1990 is protected under copyright law, but that's not an issue for you because there is an exception that permits you to photograph and publish constructed buildings that are publicly viewable. (That's not true if you must trespass on private property to photograph the building.) Even if the building contains sculptural elements like vampire figures, you can still photograph those elements and even use them as part of the backdrop in a Batman movie. (I'd refer you to Circular 41 -- Copyright Claims in Architectural Works -- for more information, but the Copyright Office is currently updating it.)

The city monument may be a different copyright issue. If it has been around for more than 85 years, it's most likely in the public domain (and even if it's newer than that, it may be PD as well -- see Fishman's fab PD Nolo book or his new treatise for more info). Post-1923-created monuments may be protected under copyright law, in which case, you can expect to get hassled (though public pressure can always change public policy). Generally, you don't need to worry about a lawsuit over photos of public art unless your use is blatantly commercial -- for example, in a movie, TV show, or on a poster.

There's a minor hiccup when it comes to trademark law. Building owners have claimed building appearances as a trademark when used in connection with the sale of goods and services -- think White Castle and the Sears Tower. But in order for a trademark owner to stop you, the following would have to be true: (1) the building would have to have an identifiable, distinctive appearance; (2) the building would have to be publicly associated with certain goods or services; (3) your use would have to be commercial (not editorial); and (4) your use would have to be linked to an offer or endorsement of similar goods or services. For example, you will run into problems if you use a picture of the Transamerica Pyramid in an ad for another company's financial services. Generally, this strategy hasn't always fared so well for trademark owners, and you probably won't need to worry about it. If you are concerned -- for example, you're working for an ad agency or movie company -- obtain a release for your photography. (There are property releases in my book on getting permission.) 

Actually, the biggest hurdle for photographers in public spaces is a national paranoia following 9/11, as exhibited by building owners, employees, and security guards. Photographers of public spaces are now considered suspect even when taking pictures of their own kids. Anyway, feel free to come by and photograph the Nolo building before the company is moved out of town. Or better yet, feel free to shoot the Dear Rich Building (see above) anytime -- the Dear Rich Staff will even take you on a guided tour.

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

Dear Rich: Can I get a trademark on my own name so that I can use it exclusively for the crafts items I make and sell? Or do I automatically have a trademark on my name? I'm so glad you asked. The short answers to your questions are "maybe" and "no." Yes, it is your name, but that, by itself, does not create trademark rights. Otherwise, anyone named Gallo could sell wine (or cheese) without getting sued; anyone named Victoria (or Victor) could have a secret; and anyone named Violet Blue could offer sex advice. As with all trademarks, the rights go to the first person to use the name in connection with certain goods and services.

In fact, your name creates a bit of a disadvantage when seeking to register a trademark with the U.S. Patent and Trademark Office (USPTO). You can't register a personal name with the USPTO unless you can demonstrate that consumers associate your name with your goods or services (referred to as "secondary meaning"). In other words, you need to show that you've been using it for a while to sell goods or services, or have invested some money in advertising the name.

All of this is kind of ironic since the earliest trademarks were the names of crafts people who marked their pottery and silverware with their names.

You can get an idea of whether anyone else is using a similar personal name for crafts by checking the USPTO trademark database (click "Trademarks," then "Search TM database"). Of course, one solution is to combine the use of your name with another term -- for example, Dear Rich -- and then you can go after those competitors with identical monikers or annoyingly similar ones, as well.

Got a question for Dear Rich? Send it to dearrichquestion@gmail and make sure it has the header: "Question."