If You Were A Tree… What Kind Of IP Protection Could You Get?
from the copyfraud-and-confusion dept
drewmo wrote in telling us:
“A friend of mine just posted a photo of the Lone Cypress in Pebble Beach and included a note saying, “Evidently, I can’t sell this image. pebble beach owns the rights.” From what I know about photography copyrights in the U.S., that’s completely incorrect.
He also pointed us to this other image (not the one his friend took) of the same tree, with an explanation claiming that there are signs nearby saying that you can’t take photographs of the tree and then sell them:
Along the fence, there are signs claiming that the tree is actually copyrighted by the Pebble Beach Association and that no photos, paintings, drawings or other depictions of the tree can be offered for sale without the express written permission of the Pebble Beach Association. If you ask me this is ludicrous and asinine. The tree is part of nature, changes with each season and I doubt there is a court in the land that would agree that any natural work of nature can be copyrighted in this manner so I doubt it is enforceable and the only way they can enforce the copyright is to threaten very expensive lawsuits which few artists would be able to fight.
This is partly true and partly misleading/wrong. However, it appears that this story pops up every so often, so let’s dig in a bit and explain what’s happening. But first, a photograph of the tree:
Look ma, here’s a CC-BY-SA-2.5 licensed image of the tree
However, Pebble Beach is not, it appears, claiming copyright on the tree. It is, however, claiming a trademark — which was actually on a drawing of the tree as the symbol of Pebble Beach — and which the resort registered in 1919. So the issue is (mostly) a trademark one — but that shouldn’t bar people from taking photos (or even selling the photos). While selling photos does meet the “use in commerce” bar of trademark, Pebble Beach would have to make the (somewhat extraordinary) claim that anyone selling such a photo was creating consumer confusion. That’s an uphill battle, to say the least. At best, they might have a claim in a case where the image was used specifically as a brand logo or to advertise something else. But just selling a photograph of the tree seems unlikely to cause any confusion whatsoever.
There is a separate issue, though, which is contract law. Pebble Beach is private, and you actually have to pay to drive the famed 17-mile drive where the tree is located. So they’re more than welcome to put forth a contractual agreement saying that you agree not to sell photographs, or something along those lines — though, actually enforcing that contract might be a bit more difficult, and would seem kind of pointless in the long run, considering just how many photos of this tree are available.
As for the question of “copyrighting” the tree, well, I’ll just quote an article from the Legal Recorder way back in 1990 that put forth a much more entertaining look at this story and whether or not trademarks, copyright or any IP could bar photographs. Here’s the bit on copyright, though I encourage reading the whole thing:
Well then, can they copyright the tree?
Not likely. Copyright protection requires original and independent creative expression. Had the company designed and created the tree, coastline, ocean and lunar tidal pull, it might claim copyright protection. It might also be content simply to turn infringers into pillars of salt. In reality, however, the Pebble Beach Co. may face a steep climb in proving that the tree or its setting represents the company’s original creative expression.
Moreover, even if the company has registered copyrights for an exhaustive array of Lone Cypress photos, these would not bar further photography. Subsequent photographs of the setting would not be likely to infringe earlier ones, as virtually all similar elements would owe to the setting itself.
So there you have it…