[Leica] Re: Shooting the Lone Cypress

[Jim Brick <jim@brick.org>]

Thanks Robert,

I figured you would respond. And I recognize you as an absolute expert. My
month of research (in conjunction with ASMP council Victor Perlman) pales
pitifully in comparison to your knowledge and abilities. I am, however,
aware of everything you said. I did indeed over step and over state the
issue, but, this is a piece of nature that has been photographed and
reproduced by artists for at least 30 years before there was any such thing
as the Pebble Beach Co. And the fact that they abandon the word mark "Lone
Cypress Tree". The Chuck Gentile Rock and Roll Hall of Fame case should
help if the PBCo tries to go after the hundreds of artists that have
products (books, paintings, wall hangings, plates, trivets, coasters, and
the list goes on forever...). They have harassed a few photographers and
scared them into licensing fees. But hundreds of artists and photographers
remain un-harassed. The PBCo, basically, for years, ignored all of the
artists use of the 17 Mile Drive geology, but suddenly started to harass.
Someone probably told them that if they didn't defend their trademarks,
they would weaken it. Anyway... I am convinced that they cannot trademark a
piece of geology, especially when it has been used freely by any and all
artists for the first half of this century. Including Ansel Adams. Most
use, actually all use I've seen, of 17 Mile Drive geology is editorial and
does not in any way project a trade affiliation. The PBCo has never taken
an alleged trademark case to court. They probably couldn't convince a judge
that harm was done. There are, however, a few of us who have responded to
their threats with a resounding NO. Talk about free advertising and
promotion. They couldn't do as well if they put all of their resources
toward it. We all have to thank Chuck Gentile for standing up against the
R&R HOF. Even though it's not over, the Appellate Court's final sentence in
its analysis is very encouraging if there is a trial on the permanent
injunction. This sentence reads, "Indeed, on the record before us, we are
left with grave doubts as to the likelihood of the Museum's success on
these claims."
Anyway, I encourage photographer to take and use (editorially) photography
of the 17 Mile Drive geology. If you cannot stop a photographer from
photographing a copyrighted and trademarked, man made building, and selling
the photograph as a poster, how can you possibly defend, prosecuting
artists from producing representations of geology, made by Mother Nature, a
millennium or so ago. Especially after ignoring them for a couple of decades.

I think they are pissing into the wind.

But this is just my uneducated humble opinion.

Thank you Robert for being here. You are the kind of person whose efforts
help make an artists life a little easier. And I apologize for stepping on
your toes. I feel very strongly and have done enough research to at least
think we photographers/artists are correct on this one. Editorially correct
that is.

Jim



At 03:01 PM 3/5/98 -0800, you wrote:
>==================================
>Jim Brick wrote:
><<Fortunately, for photographers who have taken the time to 

>check it out (me) the Lone Cypress tree is NOT trademarked.
>I did a trademark search and it came up goose egg. 
>
><<What they are doing is illegal. They use a circle-r (federal 
>trademark registration symbol) when they print "Lone Cypress Tree".   This
is a federal crime because they do not have a 
>registered trade mark. 
>
><As far as I know, I'm the only one that has bothered to read the 
>Lanham Act, and do a trademark search for all of Pebble Beach's 
>"registered" trademarks.
>======================================
>Jim,
>
>With all due respect, you are going off too strong on an area 
>where you are not an expert.  The issue is not as clear as you make it seem.
>
>As I think everyone recalls, I make my living as a trademark attorney, and
my firm's practice  is limited to trademark, copyright and patent law.
http://www.usip.com  I teach trademark law at the University of LaVerne
College of Law.  We also carry malpractice insurance in case we give an
incorrect opinion of law to our clients that results in damage to them.
>
>Pebble Beach has at least two registered trademark designs which
incorporate the Lone Cypress as their central feature:  1,548,843 and
1,571,562 are two I found with about 5 minutes searching in our IP library.
 You would have missed these if you only searched for word marks.
>
>In any event, as any of my students would tell you, federal registration
is NOT a prerequisite for enforcement of a trademark under the Lanham Act.
I know, because like you I too have read the Lanham Act.
>
>Remember, however, that protection of intellectual property is not just
limited to trademark law.  If this question were on a final I would expect
my students to also examine possible claims under misappropriation theory
and copyright, as well as express and implied contract.
>
>I am not going to debate this with you.  I get paid $325 per hour to give
opinions on this area.  LUGGers qualify for a discount. <g>
>
>But I will tell you that reasonable lawyers can present compelling
arguments on both sides of this issue.
>
>Again, please take this in the spirit of the LUG,
>
>Robert Rose
>





















                                          
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