Ansel Adams (Trust) picks a fight with Adobe

[warden]

How is his name a trademark? It;s not like Kodak or GM or Ford Motors. It's just a person's name. If some company used my name to sell their pictures, would;n't some different advertising law prevent people from doing that without my agreement and payment? That seems to be another part of the law. Maybe there's a lawyer here who can clear this up.

"Ansel Adams" is trademarked, and owned by the Ansel Adams Publishing Rights Trust. Easy enough to look up the details. You can be granted a trademark for your given name in certain cases. Outside of photography forums Ansel Adams is one of maybe three photographers anyone has ever heard of, so of course they need a trademark to protect the longstanding businesses the trust is engaged in.

In this case I think trademark law is most appropriate for disagreements like the one between the trust and Adobe should it ever come to a lawsuit because the trust is objecting to the use of their trademarked name, by Adobe, who was using it for trade.

(I have no idea if the trust would actually win the imaginary suit of course but it would be fascinating to follow along.)

 

[reddesert]

A person has rights over commercial use of certain aspects of their identity, such as name and appearance, regardless of whether they are trademarked. In this case, because Ansel Adams is dead, it may be that the Ansel Adams Trust, which is not a person, needs to have trademarked "Ansel Adams" to retain rights over the commercial use of the name, I'm not sure, it certainly strengthens their case.

It is well known in photography that if you want to take a photograph of someone and sell it for commercial purposes (such as advertising or stock photos), you need a model release. The model doesn't have a trademark on their face, but they retain certain rights to its use. The same goes for names, if I started selling "Endorsed by Matt King" developing tanks without getting Matt King's permission, Matt could write me a cease and desist letter.

The law that I quoted (part of the Lanham Act) protects more than just trademarks, it protects any distinctive identifying feature that is used in a manner to misrepresent or deceive the customer.

 

[reddesert]

The property rights for those images belong to programmers who wrote the code which generated these images. They are employed by Adobe, and Adobe lets you have the results for $9.99 per month. The Ansel Adams Foundation has absolutely nothing to do with those images, and for that parasitic behavior they deserve to be thrown out of a helicopter into a pool full of sharks with lasers.

Who "owns" property rights (you mean IP or copyright) on an AI-generated work is a not fully settled matter of law. It's certainly not programmers employed by Adobe - typically, they would not even own copyright on the code they wrote, because it would be considered work for hire. Adobe would own the copyright on code written for them, unless the employment or consulting contract states otherwise. If Adobe uses the code internally to generate images, Adobe probably owns the copyright unless the generated images are so similar to members of the training set as to constitute plagiarism. (This seems unlikely for photographs, but AI-generated text sometimes closely resembles its sources on the web - most likely if there are only a few sources in the training set, such as on a highly technical subject.)

If I as an end-user give the AI a prompt to generate me an image in the style of Famous Photographer, then do I have the copyright? After all, I gave it the idea. The answer is almost certainly no, because I'm sure the AI owner put a clause in the terms of service that they get to keep the copyright. However, the AI learned to derive its images from a training set of copyrighted images, and whether the AI images constitute "derivative works" has not yet been tested in court to my knowledge. This is one reason the holders of copyright are so worked up - the AI companies are trying to have it both ways.

 

[Alex Benjamin]

How is his name a trademark? ... It's just a person's name.

As far as society is concerned, there's no such thing as "just a person's name". For society — and therefore the law —, your name is who you are. It's what constitutes your identity. It's what defines you, what you own, what you do. Hence the notion of "legal name" (or "legally assumed name"). It's on your passport, your driver's licence, your insurance papers, your medical papers, your marriage papers, your mortgage, etc. If you change it on one of these you've commited fraud. Your name is your identity, and this is why we say that libel laws are there to protect your reputation and good name.

And because you sign your photographs with your legal, or legally assumed, name, your name is also your trademark.

Sorry to break this to you, Alan, but for society, Alan Edward Klein doesn't exist other than in the words "Alan Edward Klein", even if you exist — physically, philosophically, spiritually, emotionally — for the people of which society is made.

 

[Alan Edward Klein]

As far as society is concerned, there's no such thing as "just a person's name". For society — and therefore the law —, your name is who you are. It's what constitutes your identity. It's what defines you, what you own, what you do. Hence the notion of "legal name" (or "legally assumed name"). It's on your passport, your driver's licence, your insurance papers, your medical papers, your marriage papers, your mortgage, etc. If you change it on one of these you've commited fraud. Your name is your identity, and this is why we say that libel laws are there to protect your reputation and good name.

And because you sign your photographs with your legal, or legally assumed, name, your name is also your trademark.

Sorry to break this to you, Alan, but for society, Alan Edward Klein doesn't exist other than in the words "Alan Edward Klein", even if you exist — physically, philosophically, spiritually, emotionally — for the people of which society is made.

A person has rights over commercial use of certain aspects of their identity, such as name and appearance, regardless of whether they are trademarked. In this case, because Ansel Adams is dead, it may be that the Ansel Adams Trust, which is not a person, needs to have trademarked "Ansel Adams" to retain rights over the commercial use of the name, I'm not sure, it certainly strengthens their case.

It is well known in photography that if you want to take a photograph of someone and sell it for commercial purposes (such as advertising or stock photos), you need a model release. The model doesn't have a trademark on their face, but they retain certain rights to its use. The same goes for names, if I started selling "Endorsed by Matt King" developing tanks without getting Matt King's permission, Matt could write me a cease and desist letter.

The law that I quoted (part of the Lanham Act) protects more than just trademarks, it protects any distinctive identifying feature that is used in a manner to misrepresent or deceive the customer.

This lawyer article says names are not necessarily a trademark. I'm not famous enough like Ansel. If so, then the trademark statute would not seem to apply. But other statutes would. Here's an extract:

Can You Use Your Name as a Trademark? | New York Intellectual Property Lawyer

Free Consultation - Call 914-949-9550 - Nikki Siesel is dedicated to serving our clients with a range of legal services including Intellectual Property and Copyright cases. Can You Use Your Name as a Trademark? - New York Intellectual Property Lawyer

www.ny-trademark-lawyer.com

Can You Use Your Name as a Trademark?​

Often clients inquire as to whether personal names can be used as trademarks. The answer to this question is that it depends. There is no absolute right to use your own name as a trademark, but it is possible to do so under certain circumstances. In fact, many of the most well-known and valuable trademarks stem from personal names. This question will be answered first in connection with a "surname". Under U.S. trademark law, a Mark that is "primarily merely a surname" cannot be protected without proof that it has "acquired distinctiveness". Generally, five factors will be considered to determine if acquired distinctiveness must be shown:

(1)Whether the surname is rare;
(2)Whether the term is the surname of anyone connected with the applicant;
(3)Whether the term has any recognized meaning other than as a surname;
(4)Whether it has the "look and feel" of a surname; and
(5)Whether the stylization of lettering is distinctive enough to create a separate commercial impression.

(see the rest of the article for more clarifications. )

 

[pentaxuser]

Nailed it.



They used the words "Ansel Adams". These are precesely the words the Ansel Adams Trust objected to. And rightfully so. The use of these words are misleading in that they imply that there is a relationship, whose recognition is authorized, between Ansel Adams' work and the product being sold.

If Matt nailed it then my readíng of what he said seems in line with my understanding of what is not an attempt to use the name of Ansel Adams by making it crystal clear that they are not his prints. The phrase "Ansel Adams style" seems quite different to what the Ansel Adams trust is alleging it means

I used an example of car advertising in my reply and I note that Drew seems to have drawn a similar parallel in Harley v Kawasaki over engine note noise It surely becomes nonsensical at that point to claim that in the context of what Adobe has stated the use of the words Ansel Adams is effectively "banned"

We will only know what a Court of Law judgement would be if Adobe is taken to law Here's a question: I have just taken a moonrise over Hernandez and have manipulated in the darkroom a print so it looks like the Ansel Adams one I put it up for sale

If I name it Moonrise Over Hernandez am I OK because I have not used the same title? Would I be OK if I called it exactly the same as Ansel?

If I am OK in both cases above I presume that I dare not say "in the style of AA " or I am in trouble?

I wonder if I take a picture of two people kissing in a similar spot in Paris to that of Robert Doisneau and call it " The Kiss" would the Doisneau Trust if there was one and it was based in the U.S. be able to take legal action?

The same kind of argument covers all sorts of non photographic scenarios as well. If I am trying to sell my skills to a soccer club ( can I used football as you are north of the 49th?) and I play my game as like an old-fashioned winger of the 1950s in the style that was best exploited by the legendary "Stanley Matthews," can I or a sports commentator use the phrase "in the Stanley Matthews style if there was a Trust in that person's name without running foul of whatever law the AA trust would have used or will use if it remains dissatisfied with Adobe's response?

Now you may say with some justification that I am getting close to postulating scenarios above that are getting nonsensical
but so it seems to me is the Ansel Adams Trust

Mind you in many cases the "law is an ass" but is still the law. I'l certainly concede that point


pentaxuser

 

[Alex Benjamin]

Now you may say with some justification that I am getting close to postulating scenarios above that are getting nonsensical

Indeed, but this thread was badly in need of imaginative entertainment.

but so it seems to me is the Ansel Adams Trust

Full name of the organisation is The Ansel Adams Publishing Rights Trust. They are doing exactly what they are supposed to do, in the way they are supposed to do it.

 

[Alex Benjamin]

Should be mentioned that Adobe was going against its own terms of use, which forbids downloading AI-generated images “created using prompts containing other artist names, or created using prompts otherwise intended to copy another artist.” Once they recognized this, they took down the image and the AA reference.

Not sure how one can blame the Ansel Adams Publishing Rigths Trust when even Adobe agrees with them.

 

[Milpool]

You'll need to be careful with the Moonrise picture because Adams called it various things including Moon Over Hernia on at least one occasion.

If Matt nailed it then my readíng of what he said seems in line with my understanding of what is not an attempt to use the name of Ansel Adams by making it crystal clear that they are not his prints. The phrase "Ansel Adams style" seems quite different to what the Ansel Adams trust is alleging it means

I used an example of car advertising in my reply and I note that Drew seems to have drawn a similar parallel in Harley v Kawasaki over engine note noise It surely becomes nonsensical at that point to claim that in the context of what Adobe has stated the use of the words Ansel Adams is effectively "banned"

We will only know what a Court of Law judgement would be if Adobe is taken to law Here's a question: I have just taken a moonrise over Hernandez and have manipulated in the darkroom a print so it looks like the Ansel Adams one I put it up for sale

If I name it Moonrise Over Hernandez am I OK because I have not used the same title? Would I be OK if I called it exactly the same as Ansel?

If I am OK in both cases above I presume that I dare not say "in the style of AA " or I am in trouble?

I wonder if I take a picture of two people kissing in a similar spot in Paris to that of Robert Doisneau and call it " The Kiss" would the Doisneau Trust if there was one and it was based in the U.S. be able to take legal action?

The same kind of argument covers all sorts of non photographic scenarios as well. If I am trying to sell my skills to a soccer club ( can I used football as you are north of the 49th?) and I play my game as like an old-fashioned winger of the 1950s in the style that was best exploited by the legendary "Stanley Matthews," can I or a sports commentator use the phrase "in the Stanley Matthews style if there was a Trust in that person's name without running foul of whatever law the AA trust would have used or will use if it remains dissatisfied with Adobe's response?

Now you may say with some justification that I am getting close to postulating scenarios above that are getting nonsensical
but so it seems to me is the Ansel Adams Trust

Mind you in many cases the "law is an ass" but is still the law. I'l certainly concede that point


pentaxuser

 

[MattKing]

A person has rights over commercial use of certain aspects of their identity, such as name and appearance, regardless of whether they are trademarked. In this case, because Ansel Adams is dead, it may be that the Ansel Adams Trust, which is not a person, needs to have trademarked "Ansel Adams" to retain rights over the commercial use of the name, I'm not sure, it certainly strengthens their case.

I don't know this for a fact, but it is quite likely that the Trust received a transfer to it from the Estate of Ansel Adams of those personal rights that remained in the Estate after he died.
The Estate is/was for many purposes a legal "person". I would be surprised if the Trust isn't as well.
Intellectual Property law protects the work of those who create things. And those protections don't die with the creator.
Otherwise, things like photographs would have no more value than the raw value of the constituents that mix together to make up the paper and emulsion in a print, or the cost of the electricity used to power your computer/cel phone/TV screen.
That law creates a claim in damages and access to injunctive type relief if, without prior approval from Alan, someone goes out and says that people should buy their photo because people who do so will be getting a photo that is a great "Alan Edward Klein" type photo. In other words, there is a legal consequence for misappropriating a publicly recognizable artistic identity.
Without prior agreement, Adobe can't go out and sell its wares using the Ansel Adams well known and hard-established artistic reputation as a selling point.

The same goes for names, if I started selling "Endorsed by Matt King" developing tanks without getting Matt King's permission, Matt could write me a cease and desist letter.

I'll accept bricks of 135 and 120 T-Max 400 as compensation .....
Bulk rolls of T-Max 400 too.

 

[Alan Edward Klein]

I don't know this for a fact, but it is quite likely that the Trust received a transfer to it from the Estate of Ansel Adams of those personal rights that remained in the Estate after he died.
The Estate is/was for many purposes a legal "person". I would be surprised if the Trust isn't as well.
Intellectual Property law protects the work of those who create things. And those protections don't die with the creator.
Otherwise, things like photographs would have no more value than the raw value of the constituents that mix together to make up the paper and emulsion in a print, or the cost of the electricity used to power your computer/cel phone/TV screen.
That law creates a claim in damages and access to injunctive type relief if, without prior approval from Alan, someone goes out and says that people should buy their photo because people who do so will be getting a photo that is a great "Alan Edward Klein" type photo. In other words, there is a legal consequence for misappropriating a publicly recognizable artistic identity.
Without prior agreement, Adobe can't go out and sell its wares using the Ansel Adams well known and hard-established artistic reputation as a selling point.


I'll accept bricks of 135 and 120 T-Max 400 as compensation .....
Bulk rolls of T-Max 400 too.

Nice to know Matt. I'll keep an eye on Adobe to see when they start using my name to make a profit.

 

[Alan Edward Klein]

As Koraks said, you've got it backwards. You can hire a photographer and tell him to "make a few images in Ansel Adams style". On the other hand, a photographer cannot advertise his practice by saying he makes photos that looks like Ansel Adams' photos. Even if he does make photos that look like Ansel Adams' photos: the "misrepresentation" and "misleading" parts of the law refer to the use of the name and making money out of it, not the actual photographic practice.

That said, I believe he probably could, in his advertisement, state that his photos of Yosemite are made "following the zone-system rules invented by Ansel Adams". A bit less misleading — associating his practice, rather than his works, to Ansel Adams is certainly more subtle —, but still the possibility of misrepresentation — does he really ? —, and I'm almost tempted to write to the AA Trust to see what they think.

Well, I use a view camera similar to the one used by Ansel Adams.

 

[warden]

This photographer might mention Adams once or twice while trying to make a sale. I think he owes everyone at the Adams trust a beer.

Ansel Adams Style Photos and Wall Art

Ansel Adams Style Photos and Wall Art

www.ryansmithfineart.com

 

[VinceInMT]

The help file for Adobe Premiere provides instructions for how to create the “Ken Burns effect” in a series of still images. I wonder if they had to clear that with Burns?

 

[warden]

The help file for Adobe Premiere provides instructions for how to create the “Ken Burns effect” in a series of still images. I wonder if they had to clear that with Burns?

Apple did, via Burns’s endorsement. I imagine Adobe does too.

 

[TJones]

So it seems in U.S. law that what Abobe has said, namely " Ansel Adams style photographs but AI generated" is enough to get you sued despite the use of the word style and literally being "bashed over the head" by the very clear phrase AI generated

I struggle to see how this clear statement by Adobe renders it vulnerable to a lawsuit If say the Aston Martin car was the fasted over 0-60 for a road legal vehicle and another car maker wanted to make a comparison with its speed over 0-60 which was within a fraction of or even the same as the Aston Martin's and so advertised its car's acceleration as in the Aston Martin's class woukd that render it liable to a lawsuit in the U.S.?

Wow that is the kind of catch-all law that certainly makes being a lawyer an attractive profession. It certainly appears to promise riches to the lawyer representing the plaintiff and will of course deliver fees to the lawyer even if the plaintiff loses

I wonder why the beautiful daughter in the Buddy Holly song " Brown Eyed Handsome Man couldn't make up her mind between a doctor or a lawyer man. It's pretty clear to me which she needed to choose

pentaxuser

A quantitative comparison is probably given more leeway than a qualitative/stylistic one.