Trademark Defamation and Street/Urban photography

[tim atherton]

I haven't dug into this further, but it's worth reading

Dead Link Removed

 

[SchwinnParamount]

I would say that if a business is located in area where such 'ugliness' exist and is that concerned about it, then the course of action would be to move away or stay and be part of a solution to the percieved ugliness problem.

If a photograph depicts a business staying and doing nothing then who is really to blame?

 

[srs5694]

I would say that if a business is located in area where such 'ugliness' exist and is that concerned about it, then the course of action would be to move away or stay and be part of a solution to the percieved ugliness problem.

That covers some types of "bad press," but consider this scenario: A diaper company pays for a set of billboard advertisements along a highway that has no history of negative events (low accident rate, etc.). Somebody driving along that highway goes on a road rage rampage, shooting other drivers, killing several and wounding more. A photographer captures this in a way that makes it impossible to crop out the diaper billboard and retain proper framing, and publishes the photo, which gets picked up and is published in all the major newspapers, appears on TV, etc. The diaper company then objects, since their brand is now affiliated with this mass murder. It really isn't their fault that somebody went on a killing spree in front of their billboard, and of course the lack of history of accidents and killing sprees in this area means that they had no reason to avoid putting their ad up in that space. Their product has nothing to do with guns, violence, or cars. In some sense, the diaper company is another victim of this event.

Note that I'm not saying the diaper company should have a legal basis for suing the photographer or anybody who publishes the photo; IMHO, the possibility of such "collateral damage" does not warrant muzzling freedom of expression. What I am saying is that unintentional damage to uninvolved third parties is possible whenever photos (or video footage or audio recordings) of newsworthy events are distributed. The possibility of such damage is real and should be acknowledged -- it's just not justification for censorship, IMHO. Perhaps a reasonable middle ground would be to blur out the details on the billboard, but I'd be reluctant to require such actions. Consider if, instead of a diaper ad, the billboard had an ad for the NRA. Publishing such a photo then becomes, at least potentially, political speech. Whether or not you agree with the statement in this hypothetical photo, it'd be a powerful image and very important, from a freedom of speech perspective.

 

[removed account4]

i worked for a newspaper for a number of years, one assignment, i was told to photograph people and goings-on in a large shopping mall. i was greeted by mall security almost as soon as i pulled my camera out of my bag and immediately told " you can't photograph in here .." when i asked why, they said that the business wanted complete control of how their stores logos, et C. were being portrayed in the published media. i have a feeling what happened to me, was exactly what you are talking about. right or wrong, in this day and age, corporations and businesses want full control of what and how they are being seen.

 

[SchwinnParamount]

That covers some types of "bad press," but consider this scenario: A diaper company ... from a freedom of speech perspective.

Good point.

Maybe this angle then. If a company chooses to have a pubic presence anywhere then they also choose to accept the risk that bad things may happen near their trademark... because they have no control over life and bad things DO happen.

If I drive by that road rage shooting and see the aftermath laying on the ground under that billboard, I would make the same association as I would have after seeing a photograph of the scene. Both the live vew of the accident and the photograph of the accident represent the same slice of life in public.

If the diaper company objects to a photograph then they must also object to the retention of that memory in the minds of innocent passers by. If only a single person sees the live tragedy and 1000 people see the photograph, is that really different than 1000 people driving by the scene and one person seeing the photograph?

Life happens and the photographer is just recording it. Is it live, or is it Memorex?

My argument may be completely wrong. What do you think?

 

[Dave Parker]

i worked for a newspaper for a number of years, one assignment, i was told to photograph people and goings-on in a large shopping mall. i was greeted by mall security almost as soon as i pulled my camera out of my bag and immediately told " you can't photograph in here .." when i asked why, they said that the business wanted complete control of how their stores logos, et C. were being portrayed in the published media. i have a feeling what happened to me, was exactly what you are talking about. right or wrong, in this day and age, corporations and businesses want full control of what and how they are being seen.

Actually I understand this fully, a Mall is not public property, it is private property and hence they have the right to regulate the activities conducted on their property...

Dave

 

[removed account4]

Actually I understand this fully, a Mall is not public property, it is private property and hence they have the right to regulate the activities conducted on their property...

Dave

thanks dave

strangely enough the mall was the one that called the paper to have me photograph there for the assignment ... very strange ...

 

[Dave Parker]

thanks dave

strangely enough the mall was the one that called the paper to have me photograph there for the assignment ... very strange ...

I find that strange, apparently the word did not get passed down from management to the guards that it was at there request that you were there...just goes to show, most of the time when we are told we CAN'T photograph, means somewhere somehow, communications have broke down, just like the controversay that continues to go on over photographing public buildings, it will be interesting to see if that ever gets solved..

This very proposed law is the reason I ALWAY advocate getting a release when your photographing recognizable things or people, saves a heck of alot of heart ache, logo's are property and hence the people owning the property do have say over how that property is used and photographers and movie makers can be held liable, unless no malicious or damaging intent can be shown.

Dave

 

[jovo]

By extension one must wonder about reporting the news at all. When a postal worker "goes postal" everyone doubtless associates that kind of madness with the postal service (sorry Murray, not you of course!). Would it become actionable for a story that includes a line like: "Today, Widget Corporation Vice President, Stanley Buttstinky was discovered commiting a lewd act in public for which he has been arrested."? Part of the impact of the story is the fact that poor Stanley wasn't some marginal hourly worker at a fast food place (although that would also be reported), but a person with a job that suggests he was a 'solid citizen' and not as likely to be doing what he was doing....or at least that's the conceit that the notion of being a solid citizen implys. I can see both sides of this arguement, but it certainly leaves one "chilled" about factual reportage that might include any facts not immediately pertinent to the story....which would parobably make Joe Friday (the facts...just the facts) the ultimate journalist.

 

[SchwinnParamount]

Another good point John. If this law passes, can you imagine watching your local TV news? You know how they sometimes blur the face of an accused but not convicted person? Imagine the billboard or store facade being blurred in all 'on the scene' footage shot with the news camera.

Maybe they should blur the actual street signs or city limit signs too. As a citizen of my fair city, I feel outraged every time a bad newsworthy item appears in print or broadcast media with the seemingly innocent mention of my city. If a corporation can legitimately argue that their reputation is hurt, why not a municipality or a school?

In effect, this proposed law gives any person or organization the right of censorship over the media.

 

[Kino]

(snip) What I am saying is that unintentional damage to uninvolved third parties is possible whenever photos (or video footage or audio recordings) of newsworthy events are distributed. The possibility of such damage is real and should be acknowledged -- it's just not justification for censorship, IMHO. Perhaps a reasonable middle ground would be to blur out the details on the billboard, but I'd be reluctant to require such actions. Consider if, instead of a diaper ad, the billboard had an ad for the NRA. Publishing such a photo then becomes, at least potentially, political speech. Whether or not you agree with the statement in this hypothetical photo, it'd be a powerful image and very important, from a freedom of speech perspective.

This is a subject that raises my hackles; being trained as a photojournalist, censorship should be called censorship, period.

Don't take this personal, but your argument to alter the image is not acceptable under any circumstances and just the fact that anyone would even think it partially "reasonable" is frightening.

The act of living is a political statement regardless of how active you are in politics; your actions speak for themselves and your values. Also, there is no such thing as "impartial" photography; cameras don't float off and fire images randomly, at least mine don't!

Just as corporations CAN control access and use of their images on private property, the cannot do the same on public property UNLESS they can show that the intent was malicious, intentional and overt. Please note that the burden of proof of malicious behavior resides with the Corporation when images are made in a public area.

Ironically, Madison Avenue is the biggest proponent of and user of product association-to-image, so the users of advertising are hypocrites if they think they can dictate an "after the fact" association, don't you think?

Associations take place in the mind of the viewer that are out of the control of the photographer. It's really too bad if anyone doesn't like what actually happened, if the diaper company chose to advertise in the the public arena, then they take the lumps with the gold.

As much as US Corporations fight for and the government would LOVE to grant Corporations "free speech rights", they are and have never been individuals. It is extremely dangerous to begin to think that they either deserve or should be recognized as individuals UNLESS we can tax them as individuals and hold them responsible for their actions like individuals.

HA! What do you bet that passing a law that would make free speech for corporations possible IF they pay taxes like an individual and are legally liable like an individual would that stop them dead in their tracks? LOL

 

[srs5694]

The possibility of such damage is real and should be acknowledged -- it's just not justification for censorship, IMHO. Perhaps a reasonable middle ground would be to blur out the details on the billboard, but I'd be reluctant to require such actions.

This is a subject that raises my hackles; being trained as a photojournalist, censorship should be called censorship, period.

As I did; note the word "censorship" the the above quote.

Don't take this personal, but your argument to alter the image is not acceptable under any circumstances and just the fact that anyone would even think it partially "reasonable" is frightening.

Please re-read what I wrote, and specifically the part that reads "I'd be reluctant to require such actions."

As much as US Corporations fight for and the government would LOVE to grant Corporations "free speech rights", they are and have never been individuals. It is extremely dangerous to begin to think that they either deserve or should be recognized as individuals UNLESS we can tax them as individuals and hold them responsible for their actions like individuals.

IANAL, but my understanding is that this is already the case. Corporations do enjoy free-speech rights and most other rights granted to individuals and they are taxed, although the details of how they're taxed are different than they are for individuals. They're also held responsible for their actions, although of course you can't lock a corporation in jail, so punishment for law-breaking is mostly in the form of fines.

 

[Roger Krueger]

Just as corporations CAN control access and use of their images on private property, the cannot do the same on public property UNLESS they can show that the intent was malicious, intentional and overt. Please note that the burden of proof of malicious behavior resides with the Corporation when images are made in a public area. LOL

Only if you assume that the corporation's goal is to win the suit.

It's more realistic to assume their goal is merely to not get the suit thrown out of court, and thus ruin your life with extended litigation they can afford and you can't, and intimidate anyone else considering similar actions. They merely have to prove it's vaguely possible they're right to not get thrown out.

Worse, new statute means no case law pertaining to the new statute. A meritless suit that might've gotten tossed quickly in the past may now legitimately make it to trial and several appeals, since all the potential screwball interpretations of the new law have yet to be definitively shot down.

 

[rbarker]

Here's a link for the actual text of the bill in PDF form.

While there are exclusions for comparison advertising, criticism/parody, and "all forms of news reporting and news commentary", there is not an exclusion for coincidental inclusion of the trademark in an image of an event, person or object. So, I guess the concern to us centers around what constitutes criticism/parody and how "news reporting" is defined with respect to our area of interest. Regardless, it would seem that the deep-pocketed trademark owner is likely to win - along with the trial lawyers, of course.

 

[Kino]

As I did; note the word "censorship" the the above quote.
Please re-read what I wrote, and specifically the part that reads "I'd be reluctant to require such actions.".

I saw it. You also said, "relucatant"; a nuance that implies it might be acceptable to impose under certain circumstances. I do not agree at all with that sentiment.

I also asked that you not take it personal; debate can occur without offense.

IANAL, but my understanding is that this is already the case. Corporations do enjoy free-speech rights and most other rights granted to individuals and they are taxed, although the details of how they're taxed are different than they are for individuals. They're also held responsible for their actions, although of course you can't lock a corporation in jail, so punishment for law-breaking is mostly in the form of fines.

I am unaware of Supreme Court decisions upholding the free-speech rights of a corporation, but would like the references to read-up on if true.

IMHO, If it is true, it certainly needs to be overturned. I've never seen a factory or a packing plant vote, particpate in civic events or canvas for a political candidate, but I HAVE seen people who work for that corporation do it.