Rock and Roll Hall of Fame & Museum

On July 16, 1996, the New York Times front page reported that the Rock and Roll Hall of Fame & Museum had sued a photographer, Charles M. Gentile of Cleveland, Ohio, for infringing its trademark. Mr. Gentile was selling posters of the Rock and Roll Hall of Fame & Museum created from a photograph he had taken.

Mr. Gentile had produced many posters of other subjects before without a problem. Unfortunately, the distinctive Rock and Roll Hall of Fame & Museum’s architecture was trademarked and the museum owners had taken specific measures to obtain the trademark from the building’s designer, I.M. Pei, to avoid similar problems.

Usually, trademarks prevent enterprises from copying designs developed by other enterprises—such as McDonald’s golden arches. Owning the building trademark, therefore, allows the museum owners to generate protected revenues from posters, mugs, hats, T-shirts, etc., that display the distinctive building shape. These revenues help pay back the public bonds used to finance the Rock and Roll Hall of Fame & Museum.

Make no mistake about it, the museum had a very strong case. A U.S. District Court issued a preliminary injunction that required Mr. Gentile to collect all unsold posters and deliver them to an opposing lawyer “for destruction,” which the photographer subsequently appealed.

Additional information can be found at:

• http://essential.org/listproc/cpt-ip/0219.html
• http://132.235.238.184/archives/050296/rock.html
• http://www.universe.digex.net/~danielob/dan.html
• http://target.ndgphoenix.com/asmp/newslines.html#200
• http://www.tmn.com/Artswire/www/current/current.html
• http://www.tv.cbc.ca/undercurrents/week07/copyright/one.html
• http://www.arlington.net/news/doc/1047/1:NATIONC/1:NATIONC061596.html

How many photographs do you have of interesting settings? Do any contain trademarked or copyrighted structures? How can you be sure? Where is the line between copyright and trademark infringement? If you are not certain, lawyers will graciously help you find out, at prevailing rates, of course.

Other Considerations

Digital image editing introduces a variety of legal issues. Here are a few more:

1. From preceding chapters, black and white digital images are quantized analog sample values, arranged as two-dimensional monochromatic intensity value arrays. When transformed into visual spectrum monochromatic intensities, the numeric values collectively produce an achromatic pointillist mosaic that Seurat himself would envy. Human perception pattern matching suggests the mosaic represents something based on a best bet.
   Consider sampling 4-by-5-inch photographs at a vertical and horizontal sampling rate of 100 samples per inch. This produces 200,000 (4 x 100 x 5 x 100) samples, or pixels, total. If each sample has one of 256 (2⁸) values, there are 2^8*200,000 or 2^1,600,000 different possible images for this image size at this sampling rate.
   Admittedly, this is a very large number. But, it is finite and while any possible single image is verifiably different from any other, the image may be visually indistinguishable from trillions of other images. Who decides image ownership and which other images are visual plagiarism because they are subjectively indistinguishable from a claimed image? It is a good bet they will be well paid for their services.

   More basically,

   • Who owns the number p? How about “8” and the individual achromatic intensity sample it represents?
   • Who owns sample value sequences constructed from the achromatic intensity value set {0, 1, 2,.... 255}?
   • Finally, who owns achromatic sample value patterns like:

     8	4	6	2	...
     9	3	5	5	...
     0	2	4	4	...
     2	9	5	6	...
     ...	...	...	...	...

2. What constitutes fair image use? Suppose you:
   • Obtain a copyrighted digital image someone else created, perhaps from the WWW, and alter it, maybe by changing a single sample value. Who owns the new derivative image? Answer: the original copyright owner; the derivative artist only owns the derivative changes. What if you change two sample values, etc.? Same answer until you get “far enough” away, variously defined. It is important to know that Digimarc, Inc. of Portland, Oregon, provides a nearly invisible way to “fingerprint” digital images, allowing their owners to identify them despite alterations.
   • Obtain a copyrighted digital image someone else created, remove an image fragment, and use the fragment again in the same image. Is this a fair use of the image? No, it is not. Who owns the new derivative image? Answer: the original copyright owner(s).
   • Remove an image fragment from one copyrighted image and use it in another copyrighted image. Who owns the new derivative image? Not you. The other two image creators? Some combination? Yes. Is there a copyright infringement? Yes.
   • Create a composite image by inserting an image fragment of models into a gambling casino image. Can the models sue and win if they abhor gambling and feel you defamed them by suggesting they gamble, thereby portraying them in a false light? Possibly so.

In an actual incident, considered as false light representation by many civil rights leaders, the San Jose Mercury News reported that Phillip Jones, general manager of Dr. Martin Luther King’s estate, stated Dr. King’s famous “I Have a Dream” speech is copyrighted and requested that a political campaign commercial promoting a ballot measure that threatened affirmative action rights in California “cease and desist” using a video recording of it. Mr. Phillips commented, “We do not allow use of Dr. King’s intellectual property in political campaigns.” Many folks suspected it was true particularly for that one.