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by Mike Masnick

Fri, May 27th 2011 8:13am

Filed Under:
dilution, trademark

Companies:
nyse, tpm

Permalink.

NY Stock Exchange Claims Trademark On Any Depiction Of Trading Floor, Threatens TPM

from the ownership-society dept

For quite some time now, we've been detailing the rise of "ownership society," where misleading concepts like "intellectual property" have been so driven into the heads of some people, that they believe they can claim "ownership" of totally abstract things, and then aggressively claim that no one else can make use of them. It's a really sad statement on what we're teaching people when it comes to "intellectual property." The latest such example is that the NY Stock Exchange (NYSE) apparently was able to secure a trademark (2587615) a few years back that appears to cover any representation -- such as a drawing or photograph -- of the NYSE trading floor.

Overbroad enough for you?

Well, the NYSE's senior VP for its "Intellectual Property Group" (the NYSE has a whole IP group?!?) is now threatening the news site Talking Points Memo for writing a story that was illustrated with the following stock photo:

In the view of the NYSE, apparently, posting a photo of the trading floor without its approval is trademark dilution. This is, simply speaking, an amazing stretch of the dilution concept of trademark law. Of course, the very use of "dilution" in trademark law is a stretch of the stated and written explanation of trademark law which is solely supposed to be about preventing consumer confusion from products. Yet, in this case no one is being confused into thinking that the NYSE is endorsing TPM's coverage. And TPM's use is not diluting the NYSE's mark. The NYSE might not like it, but then using trademark law to block that form of speech is completely antithetical to the law's intended purpose, and the general concepts of free speech (and, to clarify: free speech is about the government stopping speech, but that includes a private company using laws to prevent another's free speech).

Thankfully, it appears that TPM has good trademark lawyers they can call on, and they're calling the NYSE's bluff:

TPM is represented on Media and IP matters by extremely capable specialist outside counsel. And we've been advised that the NYSE's claims are baseless and ridiculous on their face. But this is yet another example of how many large corporations have given way to IP-mania, trying to bully smaller companies into submission with inane and legally specious claims of intellectual property rights.

Well, TPM's small but we have big teeth. And we don't like being pushed around. So we're again posting the same picture as an illustration for this post. But really, what's next? Mayor Bloomberg trademarks his face and the city newspapers have to get his permission to publish photos of him so not to infringe the Bloomberg face trademark? Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.

Not only that, but TPM has proposed a contest, asking people to predict what the NYSE will try to stop next. Should be interesting to see the NYSE's response. The proper response would be to apologize, admit that it overreached, and promise not to do so again. The more likely response is silence. The really dumb response would be to press this issue.

50 Comments | Leave a Comment

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Reader Comments (rss)

(Flattened / Threaded)

Anonymous Coward, May 27th, 2011 @ 8:29am

It is a private, not public location. They have all rights.

[ reply to this | link to this | view in thread ]
The eejit (profile), May 27th, 2011 @ 8:31am

Re:
So a depiction, regardless of accuracy, is a trademark violation now?

One word: lolwut?

[ reply to this | link to this | view in thread ]
Joshy, May 27th, 2011 @ 8:42am

In Portland Oregon there is a statue on one of the city government buildings. The Statue "Portlandia" isn't very famous nor used often in anything related to do with the city because the sculptor has retained "intellectul property rights" and thus no commercial reproduction or phots can be taken of the statue without the artists permission. Some gift to the city eh...it's named after you perched on a public building and maintained by the city...but no one is allowed to reproduce a photo of it...

http://en.wikipedia.org/wiki/Portlandia

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 8:45am

Re:
If the statue doesn't belong to the public then why is it being stored on public property? I recommend http://www.publicstorage.com/

[ reply to this | link to this | view in thread ]
:Lobo Santo (profile), May 27th, 2011 @ 8:45am

Re: Re: :-D
Welcome the internet age everybody, were 'lolwut' is one word, and embodies almost one concept.

;-P

[ reply to this | link to this | view in thread ]
Andy (profile), May 27th, 2011 @ 8:51am

Would be quite the hoot if they tried to claim trademark over all the ticker symbols of the stocks traded on their exchange! The sooner IP maximalists reach the extreme where they put themselves out of business, the better, perhaps.

[ reply to this | link to this | view in thread ]
That Anonymous Coward, May 27th, 2011 @ 8:56am

Oooh for fun lets find all the pictures of it the AP sells...
Lawyer gladiatorial combat!
Only the strong survive!

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 8:59am

Re:

It is a private, not public location. They have all rights.

Including the ones that's don't exist!

[ reply to this | link to this | view in thread ]
Ben Robinson (profile), May 27th, 2011 @ 9:01am

Who owns your knowledge
I say this on the BBC site today http://www.bbc.co.uk/news/business-13570725

As far as I can tell PayPal are trying to claim ownership of the knowledge in a former employees brain and are suing google for employing him. If the guy took documentation or code with him then fair enough, if he had a contract that that said he couldn't go work for google or whoever then fair enough. But suing google for employing someone who has useful and relevant knowledge is crazy. All google is doing is competing for employees the same as all firms do constantly. I am a software developer and before working in my current role i had no experience of Dynamics CRM development. Now i have lots and demand for my services does my current company get to sue if i get a better job elsewhere.

[ reply to this | link to this | view in thread ]
Mr. Smarta**, May 27th, 2011 @ 9:07am

Makes perfect sense
Technically, I own the whole idea, concept, and IP of Ex Post Facto, so everything that came before now belongs to me. Just ship it all to my home address along with all the money that was printed before today. And tomorrow, you'll all owe me everything created today. If not, I'll sue you all tomorrow for not giving me everything yesterday.

[ reply to this | link to this | view in thread ]
Trails (profile), May 27th, 2011 @ 9:17am

Re:
All rights?!?! No. Just because you own property, doesn't mean you get to control others' depiction of our discussion of that, except in very limited sense defined by law.

Nice try though.

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 9:28am

Re: Re:
The image is taken inside a private location, and a location release was obtained, the image cannot be used. They could take a picture of the outside of building and use that, but images taken inside are subject to approval by the location owner.

For that matter, the two people in the image would also have rights, and would require a model release. That could only be avoided if they agreed to waive those rights upon entering the premises.

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 9:31am

Re: Makes perfect sense
You know what I own? Facebook.

[ reply to this | link to this | view in thread ]
Mike Masnick (profile), May 27th, 2011 @ 9:38am

Re: Re: Re:
The image is taken inside a private location, and a location release was obtained, the image cannot be used. They could take a picture of the outside of building and use that, but images taken inside are subject to approval by the location owner.

Care to post a citation for that? I believe what's stated above is almost entirely wrong.

[ reply to this | link to this | view in thread ]
W4RM4N (profile), May 27th, 2011 @ 9:38am

What the NYSE Will Stop Next
I believe/predict the NYSE will stop the act of raising your hand and yelling. This will devistate the auction business. You won't be able to buy a beer or hotdog at the ballpark. Rock concerts will become a thing of the past. Political speeches will never be the same. The taxi companies will be left in ruins. Depressing; I know.

[ reply to this | link to this | view in thread ]
mike allen (profile), May 27th, 2011 @ 9:44am

As all brains work on a frequency i own that frequency i own all your brains any thoughts you have i want $100 each.
Rich at last (totally sarcastic)

[ reply to this | link to this | view in thread ]
mike allen (profile), May 27th, 2011 @ 9:50am

more seriously i just searched for NYSE on goggle images. result, About 3,380,000 results how many are they suing.

[ reply to this | link to this | view in thread ]
RD, May 27th, 2011 @ 9:53am

Re: Re: Re: Re:
"The image is taken inside a private location, and a location release was obtained, the image cannot be used. They could take a picture of the outside of building and use that, but images taken inside are subject to approval by the location owner."

"Care to post a citation for that? I believe what's stated above is almost entirely wrong."

It is completely and 100% wrong. The private location can bar you from TAKING pictures while ON their property AT THAT TIME, but once you are gone, if you have pics, tough cookie. Otherwise, NO news organization or paparazzi would be able to take a pic of ANYTHING. I cant believe people actually believe the tripe that gets posted like the above commenter. "subject to the approval of the location owner" has ZERO codification in law ex post facto. Sorry, FAIL.

[ reply to this | link to this | view in thread ]
harbingerofdoom (profile), May 27th, 2011 @ 10:01am

Re: What the NYSE Will Stop Next
Political speeches will never be the same

so, not all bad then...

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 10:10am

Re: Re: Re: Re:
http://photorights.org/faq/can-i-take-photographs-on-private-property-without-permission

http://w ww.wipo.int/sme/en/documents/ip_photography.htm

http://communications-media.lawyers.com/privacy-l aw/Videotaping-and-Photography-on-Private-Property.html

[ reply to this | link to this | view in thread ]
Davis Freeberg, May 27th, 2011 @ 10:16am

The NYSE Has A Point
If you go back to the original article, you'll see that TPM used the NYSE photo on a story about insider trading at unrelated hedge funds. It would be a bit like Mike writing a story about tainted beef at Burger King and then using a picture of McDonalds to illustrate it. Most people might not appreciate the difference when it comes to finance, but clearly the NYSE shouldn't be associated with people who weren't even members. While their trademark claim may or may not be overreaching, TPM did make a mistake in this case and could have easily changed photos to rectify it. While they may ultimately end up being in the right, I don't think this is a case where TPM is doing the right thing.

[ reply to this | link to this | view in thread ]
DannyB (profile), May 27th, 2011 @ 10:25am

Re:
They have rights to restrict people from entry.

They may have copyrights if something creative such as artwork were photographed. Of course, the photo could still be used in a fair use manner, such as a story that is unrelated to the artwork, and the artwork that happens to be incidentally in the photo is not the reason people flock to the story. But this paragraph is irrelevant to the issue.

They have trademark rights to their NYSE logo. But that doesn't mean this photo is infringing those rights.

In this case, they allowed someone access. They even allowed them to photograph. The use of the photograph is fair use. There is no trademark issue.

[ reply to this | link to this | view in thread ]
DannyB (profile), May 27th, 2011 @ 10:28am

Re: Re:
It sounds like the statue is owned by the city. The copyright is owned by the artist.

Even if that is the case, there can still be fair use defenses of a photo that happens to include the statue. There are probably fewer possible fair uses of a photo where the statue is the subject of the photo.

[ reply to this | link to this | view in thread ]
DannyB (profile), May 27th, 2011 @ 10:32am

Re:
Personally, I have found that if you use two layers of foil when fashioning your aluminum headwear that it more than doubles the effectivness!

This is due to a resonance effect that develops between the two layers of foil at exactly twice the frequency of the government's invisible brain lasers.

Also, I have found that if you fashion two antennas on top instead of the usual single antenna that it further increases the effectiveness by an additional 37 %.

I have a patent pending on these and other discoveries.

[ reply to this | link to this | view in thread ]
DogBreath, May 27th, 2011 @ 10:37am

Re:
From what I've just seen on Google Maps right above the entrance to "The Portland Building"(blue-green color) at 1120 Southwest 5th Avenue, Portland, OR, (unless Google Maps received permission and "paid their dues" to photo the sculpture), they are in big trouble (again... sigh).

See for yourself:

http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=1120+Southw est+5th+Avenue,+Portland,+OR&aq=0&sll=37.0625,-95.677068&sspn=29.578161,56.513672&ie =UTF8&hq=&hnear=1120+SW+5th+Ave,+Portland,+Oregon+97204&ll=45.515907,-122.679133&spn =0.001609,0.003449&t=h&z=18&layer=c&cbll=45.515804,-122.679187&panoid=PLuEEqAagj m6hH4Csnl0eQ&cbp=12,110.6,,0,-42.69

Even though the view is a little blurry, obscured by tree branches, the illegal image pirating of the sculptor's intellectual property clearly ought to be worth a couple of bucks in some "sue-em-all" court.

Poor Google...

[ reply to this | link to this | view in thread ]
The eejit (profile), May 27th, 2011 @ 10:43am

Re: The NYSE Has A Point
That's not what they're suing for. If it were, we wouldn't be seeing this.

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 10:48am

Re: Re: Re:
"It sounds like the statue is owned by the city. The copyright is owned by the artist."

That's retarded.

[ reply to this | link to this | view in thread ]
AdamR (profile), May 27th, 2011 @ 10:54am

Re: The NYSE Has A Point
So your saying that none of the companies involved in the probe( IE Goldman Sachs) not a NYSE member? That none of the stocks they are accused trading with insider info are part of the NYSE?

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 10:55am

Re: Re: Re: Re:
Not really.

If you buy a music CD, you own the CD. But the Copyright is owned by the artist.

Same principle could apply.

[ reply to this | link to this | view in thread ]
Davis Freeberg (profile), May 27th, 2011 @ 10:59am

Re: Re: The NYSE Has A Point
A.) They're not "suing" anybody yet, but if TPM tries to raise a fair use defense, they may run into trouble because the NYSE had nothing to do with the original story. B.) This is exactly what they are complaining about,

"your unauthorized used of the images of the trading floor, tarnishes NYSE's trademarks and it's affiliated companies by associating NYSE trademarks with entities and issue with which it is not affiliated or relevant."

Again, this doesn't make the NYSE right, but you can see their point. Can you imagine the uproar if TPM used a Starbucks photo for a story about slave labor in China? Even though the two had nothing to do with each other, Starbucks brand would still be guilty by association. The NYSE is a 200 year old institution, the hedge funds that were busted for sleazy behavior were young companies that had much less regulation. To use a NYSE photo with the story is almost slanderous. The mere fact that no one seems to acknowledge this is proof that the NYSE has a branding problem and should be defending their reputation somehow.

[ reply to this | link to this | view in thread ]
Mike Raffety (profile), May 27th, 2011 @ 11:02am

Trademarking an image
Reminds me of the attempts by the French to claim copyright over all images of the Eiffel Tower.

http://www.techdirt.com/articles/20050202/1946248.shtml

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 11:05am

Re: Re: Re: Re: Re:

It is completely and 100% wrong.

Listen folks, they don't make the rules. They just make them up and post them as Anonymous Cowards.

[ reply to this | link to this | view in thread ]
DogBreath, May 27th, 2011 @ 11:09am

Re:
Think of all the license plates across the 50 states with those same ticker symbols in them that they could sue for: brand dilution. I'm sure some NYSE lawyer is thinking of it right now... with dollar signs in his eyes!

[ reply to this | link to this | view in thread ]
gort-o-matic (profile), May 27th, 2011 @ 11:10am

Chrysler Building Trademark
Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.

Not the Empire State Building, but the Chrysler Building is trademarked:
http://www.trademarkia.com/chrysler-building-75982939.html

[ reply to this | link to this | view in thread ]
Chris Rhodes (profile), May 27th, 2011 @ 11:11am

Re: Re: Re: The NYSE Has A Point
You're talking about defamation, not trademark infringement. And your discussion "fair use" assumes that the picture in question is copyrighted by the NYSE, and therefore would require a defense by TPM.

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 11:15am

Re: Re: Re: Re: Re:
"Not really."

Yes really.

"If you buy a music CD, you own the CD. But the Copyright is owned by the artist."

No city should buy things if the copy protection is 'owned' by the artist. It should demand that it be released under a CC license of some sort, or that it be in the public domain. Things on public property should belong to the public. Public property is not the storage place for someones private intellectual property.

and usually the copy protection isn't owned by the artist, but by the labels. To say that it's owned by the artist is generally false.

"Same principle could apply."

Though the principle you speak of itself is retarded, the same principle doesn't apply. In one case, public space is being used to store intellectual property at taxpayer expense. In the other case, that's not so.

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 11:16am

Re: Re: Re: Re: Re: Re:
The second to last sentence should read

"In one case, public space is being used to store private intellectual property at taxpayer expense."

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 11:18am

Re: Re: Re:
"There are probably fewer possible fair uses of a photo where the statue is the subject of the photo."

The statute needs to be removed from public property and be placed on private property. Things on public property should both intellectually and physically belong to the public, to freely copy, take pictures of and redistribute those pictures. That public property is being used to host private intellectual property at the expense the public's freedom to take a picture is unacceptable.

[ reply to this | link to this | view in thread ]
Davis Freeberg (profile), May 27th, 2011 @ 11:21am

Re: Re: Re: Re: The NYSE Has A Point
Defamation, slander, even beating the fair use defense is admitedely a stretch, but TPM acted did act unethically in this case and while the NYSE shouldn't get any love for being ham fisted, TPM should have taken the high road by correcting the mistake and using a photo of one of the hedge funds involved instead. If you look at the bigger picture, this really isn't about trademark law, it's about journalistic integrity. In the blog post Mike writes how he doesn't see how the NYSE was harmed, but if this was a case where the brands were more recognizable by consumers then this harm would be clear.

[ reply to this | link to this | view in thread ]
Scote, May 27th, 2011 @ 11:56am

...And the TransAmerica Pyramid is trademarked.
The TransAmerica Pyramid skyscraper in San Francisco is also trademarked--and it is routinely removed from the San Francisco Skyline to avoid trademark issues.

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/07/08/DDGM7C8H4O1. DTL

Which is ridiculous. Nobody should be able to essentially own a city skyline by dint of having a trademark on a building.

[ reply to this | link to this | view in thread ]
DannyB (profile), May 27th, 2011 @ 12:34pm

Re: Re: Re: Re: Re: Re:
> No city should buy things if the copy protection is 'owned' by the artist.

If that were true, that's a good argument not to buy PC's running Windows.

You own the PC, the hard disk. You don't own the copyright nor the copy protection on Windows.

[ reply to this | link to this | view in thread ]
DannyB (profile), May 27th, 2011 @ 12:36pm

Re: Re: Re: Re:
I would extend that to private property as well.

I don't care what kind of artwork you put on your property.

If I can take a picture of it from public space, then it's fair game to publish my photo.

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 27th, 2011 @ 4:34pm

lol @ the US flag... fascist country

[ reply to this | link to this | view in thread ]
slander (profile), May 27th, 2011 @ 6:35pm

Re: Re: Re: Re: Re: Re: Re:
So if you build the PC and install Linux, should you also be required to code a non-infringing BIOS from scratch? You own the motherboard, not the copyright on the BIOS.

[ reply to this | link to this | view in thread ]
Lawrence D'Oliveiro, May 27th, 2011 @ 9:57pm

Re: Chrysler Building Trademark
A trademark doesn�t stop you referring to the original product using the trademark. That, after all, is what the trademark is for.

Isn�t it?

[ reply to this | link to this | view in thread ]
btr1701 (profile), May 28th, 2011 @ 12:37am

Re: ...And the TransAmerica Pyramid is trademarked.
> The TransAmerica Pyramid skyscraper in San Francisco is
> also trademarked--and it is routinely removed from the San
> Francisco Skyline to avoid trademark issues.

I've read similar stories about Seattle's Space Needle.

Of course none of those trademarks would give their owners any legal grounds for recovery merely because a movie or photographer showed the city's skyline in their work.

This is just another example of moneyed interests using the law like a club to extort money to which they're not entitled, knowing that even if the defendants win in court, they lose financially.

[ reply to this | link to this | view in thread ]
gilroy0 (profile), May 28th, 2011 @ 5:10am

Genuine question
One of the counter-volleys is that the story was not about the NYSE but about some other unrelated hedge fund. Here's my question: The image used is pretty iconic for "financial markets". The NYSE trading floor is used by lots of financial cable channels as "the" symbol of the capitalist economy -- and the NYSE is quite happy to let them. (For example, it allows and encourages coverage of the opening and closing bell.)

Could an argument be made that the trademark conveyed by the image has been turned generic, a la the fears of Band-aid Brand bandages, Kleenex tissues, or Xerox copying? Can an image become generic?

[ reply to this | link to this | view in thread ]
Anonymous Coward, May 30th, 2011 @ 12:44pm

Re: Re: Re: Re: Re:
Thanks for posting the links that disproved your entire point.

All three say, specifically, that the owners have NO rights to demand that the photos be deleted, handed over, etc.

[ reply to this | link to this | view in thread ]
jakerome (profile), May 30th, 2011 @ 8:26pm

Glad to see this story
Sure I was among the dozens to tip TechDirt to this gem. Glad to see some in new media fight back instead of rolling over.

[ reply to this | link to this | view in thread ]
ike, May 31st, 2011 @ 3:39pm

Landmark buildings do charge fees for their image

Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.

It's my understanding that this is the case for the CN Tower* in Toronto, at least for use in movies.

* — It's currently the tallest building in the Americas, and it was the tallest in the world for over three decades.

[ reply to this | link to this | view in thread ]

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NY Stock Exchange Claims Trademark On Any Depiction Of Trading Floor, Threatens TPM

from the ownership-society dept

Reader Comments (rss)

Re:

Re:

Re: Re: :-D

Re:

Who owns your knowledge

Makes perfect sense

Re:

Re: Re:

Re: Makes perfect sense

Re: Re: Re:

What the NYSE Will Stop Next

Re: Re: Re: Re:

Re: What the NYSE Will Stop Next

Re: Re: Re: Re:

The NYSE Has A Point

Re:

Re: Re:

Re:

Re:

Re: The NYSE Has A Point

Re: Re: Re:

Re: The NYSE Has A Point

Re: Re: Re: Re:

Re: Re: The NYSE Has A Point

Trademarking an image

Re: Re: Re: Re: Re:

Re:

Chrysler Building Trademark

Re: Re: Re: The NYSE Has A Point

Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re:

Re: Re: Re:

Re: Re: Re: Re: The NYSE Has A Point

...And the TransAmerica Pyramid is trademarked.

Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re:

Re: Chrysler Building Trademark

Re: ...And the TransAmerica Pyramid is trademarked.

Genuine question

Re: Re: Re: Re: Re:

Glad to see this story

Landmark buildings do charge fees for their image

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