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Archive 2012 · Photography at Art Fair - Legal/Moral question
  
 
Peter Figen
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p.2 #1 · Photography at Art Fair - Legal/Moral question


It's not the City of Carmel. It's The Pebble Beach Corporation, and they've trademarked the tree. You can't copyright a tree, but apparently you can trademark it. They use it in their logos, advertising, etc. Back in the day, growing up in Monterey, we used to shoot at the Lone Cypress all the time. It's just another example of corporate bullshit mentality trying to control and monetize everything in their power. The Pebble Beach Corporation is another example of outsourcing, as Del Monte Properties - never the best steward of the land - sold out to a Japanese company, which owns it today.


Aug 21, 2012 at 01:11 AM
M635_Guy
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p.2 #2 · Photography at Art Fair - Legal/Moral question


How the heck to you copyright a tree??


Aug 21, 2012 at 01:21 AM
10-75
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p.2 #3 · Photography at Art Fair - Legal/Moral question


I was at the "Lone Cypress" a few years ago and after I read the trademark plaque, it made me want to become a lumber jack. What complete utter crap..... And I think if I remember correctly, just you posting the picture here might violate "their terms"

Edited on Aug 21, 2012 at 01:31 AM · View previous versions



Aug 21, 2012 at 01:29 AM
M635_Guy
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p.2 #4 · Photography at Art Fair - Legal/Moral question


Peter Figen wrote:
It's not the City of Carmel. It's The Pebble Beach Corporation, and they've trademarked the tree. You can't copyright a tree, but apparently you can trademark it. They use it in their logos, advertising, etc. Back in the day, growing up in Monterey, we used to shoot at the Lone Cypress all the time. It's just another example of corporate bullshit mentality trying to control and monetize everything in their power. The Pebble Beach Corporation is another example of outsourcing, as Del Monte Properties - never the best steward of the land - sold out to a Japanese company,
...Show more

If that is their argument, then I don't think the people telling you not to photograph the tree understand trademark law.

<<DISCLAIMER>> I'm not an attorney, but I've been dipped repeatedly in Intellectual Property law of various kinds over the years in my career.

Anyway, a trademark would only cover an original work of art created by someone, a word or phrase identifiably and originally used to refer to an entity, etc. I don't think it is possible for California to have their own trademark laws (I believe all of that is held at the Federal level), but I don't think it is physically possible to violate a trademark of a tree. The photo would have to be an exact reproduction, and used in a way to promote another commercial interest.

Copyright might be another thing (per the French whack-ass example) but that at least is a created thing. I think it is crazy to protect copyright to the extent of a photograph of a chair...



Aug 21, 2012 at 01:30 AM
dcains
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p.2 #5 · Photography at Art Fair - Legal/Moral question


From the NY Times:

http://www.nytimes.com/1990/08/02/us/monterey-journal-trees-and-trademarks-the-disputes-run-deep.html

And, Cypressgate:

http://kwartlerlaw.com/Commentaries/LoneCypressgate.html



Aug 21, 2012 at 01:38 AM
GC5
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p.2 #6 · Photography at Art Fair - Legal/Moral question



I'm not an IP lawyer, but I am a lawyer and have bumped up to the trademark world from time to time. I'd take this case in a heartbeat...



Aug 21, 2012 at 06:32 PM
millsart
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p.2 #7 · Photography at Art Fair - Legal/Moral question


johntodd wrote:
If I were at the level of selling prints of my work at a show like this, I'd have two concerns: bad shots of my work (particularly in dim, fluorescent-lit spaces) - I wouldn't want a bad photo of my work circulating; and good shots: having read the tales of some how amoral people are in stealing photos off the web and re-printing them at Walmart, with or without watermarks, I wouldn't want good photos of my work existing outside of my control.

I think the vendor would be entirely right to ask that the OP not take photos of her
...Show more


Do you really anything any actual real potential customer at an art festival where works run several hundred dollars up to several thousand dollars is going to opt instead for running to Walmart and making a cheap print of a copy ?

Likewise do you really think anyone who's home is decorated with Walmart prints of images they have taken of other photos really was a potential customer in the first place ?

"hmmm, normally I like to make $2 prints of copies at walmart and then put them in $3 budget frames but I'm feeling rather affluent today so I think I'll go buy a $900 framed piece from that nice fellow at the art festival."

Or conversely, "hmmmm, I really love this framed piece of fine art thats just a steal for $1200 but sadly I don't think it will fit into the Bently..... perhaps I'll take a snapshot of it and then go print it at the local Walmart"

NEVER ONE OF THOSE THINGS IS EVER GOING TO HAPPEN IN THE REAL WORLD so if you do ever get to the level of selling at festivals I think you can cross one concern off your list



As for the bi...I mean "woman" throwing the fit, I'd honestly have to request she do report me simply out of my curiosity of whom she would even find to report me to ?

Grab one of the off duty police offers directing traffic and report your intellectual property as having been stolen ??

"Oh officer, I'm just a humble starving artist and some brute snapped a photo of picture I'm trying to sell for several thousand dollars because I want to sit in a popup tent all weekend selling large prints of Santorini from the typical locations rather than have a real job...please do something"

They'd laugh in her face



Aug 21, 2012 at 07:35 PM
M635_Guy
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p.2 #8 · Photography at Art Fair - Legal/Moral question


GC5 wrote:
I'm not an IP lawyer, but I am a lawyer and have bumped up to the trademark world from time to time. I'd take this case in a heartbeat...


I'd like to hear your logic. In the Times article, the pine tree cited is on state-owned property! Also, I doubt they can claim it is as iconic and broadly associated as the Lone Cypress.

As for the folks at Pebble Beach, there is a distinction made to photographing for commercial purposes (where I'd kind of see their point,though I don't agree with it) and photography for personal use, right?

As I read the second "Cypressgate" article, it is much more consistent with my understanding of this area of the law...



Aug 21, 2012 at 08:43 PM
TheWengler
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p.2 #9 · Photography at Art Fair - Legal/Moral question


Tons of people with cameras at those things and most people are just there to enjoy the show. I have no idea what a persons intent is when they try to photograph my work, so I don't let anyone do it.


Aug 22, 2012 at 04:12 AM
nolaguy
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p.2 #10 · Photography at Art Fair - Legal/Moral question


dcains wrote:
In '05 we were on vacation in northern California. A local resident walking by told me I was not allowed to photograph this tree, as it had been copyrighted by the community. Oops . . .

http://deanwcains.smugmug.com/photos/68195526_oHif2-M.jpg


Don't quote me on this but one loose guideline used in determining copyright infringement (as opposed to "inspiration") is whether or not the work in question is 30% or greater different from the original work.

That said, hack a few branches off the tree, file for a copyright as your own original work and shoot away.




Aug 22, 2012 at 11:21 AM
 

Search in Used Dept. 



M635_Guy
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p.2 #11 · Photography at Art Fair - Legal/Moral question


nolaguy wrote:
Don't quote me on this but one loose guideline used in determining copyright infringement (as opposed to "inspiration") is whether or not the work in question is 30% or greater different from the original work.

That said, hack a few branches off the tree, file for a copyright as your own original work and shoot away.



I'm not sure that would work here, at least like you mean it, because this is a unique, singular place. If it is legally defensible that they can trademark the very image of this tree (which I personally doubt), then any image would probably infringe.

It sounds like there may be some confusion of terms though - it seems like the actual argument made for CypressGate might have been that the land surrounding the tree (at least the classic vista shown) is private property and the owners are explicitly disallowing photographs while on their property. That isn't trademark or copyright, and while I know nothing at all about the law around rights of landowners to restrict things like that on their own property, I'd say they might be able to do that, especially if you have to sign an agreement of some kind before entering. So what people are being told and what is being claimed might be different...

I dunno - I'd take the position that taking a photograph is a protected form of expression. If my daughter drew an image of that tree, is it infringing if the law says it is trademarked?


Edited on Aug 22, 2012 at 11:48 PM · View previous versions



Aug 22, 2012 at 04:24 PM
trenchmonkey
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p.2 #12 · Photography at Art Fair - Legal/Moral question


It's a scrawny lookin' thing on some rocks let 'em have it!


Aug 22, 2012 at 04:56 PM
Peter Bui
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p.2 #13 · Photography at Art Fair - Legal/Moral question


That woman at the art fair is nuts and sounds awfully insecure. I'm with the others, tell her to go ahead and "report" it .

She could have at the very least tried asking and explaining nicely instead. Acting like a jerk or a madman shouting out imperatives to photographers is inevitably going to piss off the wrong photographer.

Like, some spiteful people might just dump a gallon of Roundup on that tree...

Along similar lines, I've been at public ponds with my children feeding breadcrumbs to the ducks and have had people get in my face about how I'm not supposed to be feeding the ducks as if I was some sort of eco terrorist!

Dude, I'm letting my 3 year old feed breadcrumbs to some ducks, get a f*ing grip! If they simply must make the world a better place go harass some people who are littering or drivers who don't come to a complete stop at a stop sign or something...



Aug 22, 2012 at 09:10 PM
winman3
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p.2 #14 · Photography at Art Fair - Legal/Moral question


I walked past a woman "street performer" at a street festival carrying my camera. She came running up to me to inform that for $5 she will pose for me - I politely declined.

Then, stupid me, told her that I can take all the shots I want because this is a public street and this is a public event.

She started calling me names and telling me that I'm "harassing" her. Stupid me, again, told her to stop harassing me on the sidewalk. Her freakshow boyfriend got into the act, was told to F *** off while the psycho "performer" was making a scene.
Stupid me, again, walked off instead of asserting my right to use a camera in a public place.

Ha, ha, ha -- as I walked around, every 2nd person had a camera and I'm sure Psycho Missy had to give it up or defend her "artistic performance" all day.

We photogs should not be obnoxious but should exercise our rights.
In retrospect, I should have told that woman to retreeat or I'll sue her for assault.
And of course the freakshow boyfriend should have been bit**-slapped on the spot.

Such is life.



Aug 23, 2012 at 01:34 AM
Craig Gillette
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p.2 #15 · Photography at Art Fair - Legal/Moral question


State laws may not necessarily track federal law on trademarks although from what I googled (OK, I used Google to search), it's apparently intended that California's laws are to be consistent with federal law. Afaik trademark law doesn't prohibit copying or photographing a mark, but does deal with how it is used. So simply taking a picture of the tree isn't an issue. OTOH, it may be that if you sell the picture and your product competes with their products -assuming they are selling pictures of the tree, then maybe there is a legal issue there.

Back to the OP, legally, the art fair could control photography, if they chose to and had the organizers/city (owners) decided to do so. Just the same as a team or league can choose to prohibit (usually) commercial photographers from shooting games to protect the authorized/contracted team photographers (and the revenue stream). It's unlikely that they would have done so without also choosing to be much more upfront about the restrictions.

Is it a stretch to determine that there are actual copyright matters involved. A real stretch but not impossible. the matter seems to me to be one of courtesy to other artists. Deciding their art is crap so neither the art nor their feelings need to be respected when it comes to taking pictures is arrogant and petty. But hey, "photographers" can't figure out why people don't like them. Or one could simply ask if it's "OK" first.



Aug 23, 2012 at 06:53 AM
goosemang
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p.2 #16 · Photography at Art Fair - Legal/Moral question


i got the impression that if the OP had taken photos they wouldn't have been straight on images of artwork. sounds more like he was interested in taking street-type shots at the art fair... something where the primary subject of individual works of art wouldn't be the primary focus of the image.

question about controlling photography: say this art fair (or other event) is on public property and offers unrestricted access to the public (meaning you don't have to buy a ticket to get in, etc.) can the city/organizers of the event actually prohibit photography? it seems to me that once you're on public property you shouldn't be able to restrict photography (or anything else that falls within ones normal rights on public property). for instance, what's to say that the city couldn't prohibit you from photographing police arresting someone on the street? it's public property, but they could say "we prohibit photography during this type of event".



Aug 23, 2012 at 12:44 PM
talexander
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p.2 #17 · Photography at Art Fair - Legal/Moral question


Thanks for all the responses, yes it was for street style I wasn't planing on taking photos of the art unless it was in frame with the subject (ie: little girl staring at picture of a snowman for example)

Tim



Aug 23, 2012 at 04:11 PM
Craig Gillette
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p.2 #18 · Photography at Art Fair - Legal/Moral question


Property owners can control the activity on their property. If the city leases out space to an event, the lease holders can control activity on the property. There's really nothing dramatic about this.


Aug 24, 2012 at 03:37 AM
M635_Guy
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p.2 #19 · Photography at Art Fair - Legal/Moral question


Craig Gillette wrote:
Property owners can control the activity on their property. If the city leases out space to an event, the lease holders can control activity on the property. There's really nothing dramatic about this.


True, but difficult to do unless there are tickets that convey acceptance of terms or posted signs, etc. Even then, the rules on something like that on public property might prove hard to enforce. Private property is probably a whole other ball game...



Aug 24, 2012 at 02:49 PM
Will Patterson
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p.2 #20 · Photography at Art Fair - Legal/Moral question


I was at that same exact type of "craft show" two weekends ago but everyone was very nice. I was walking around with my 1D X and 16-28mm and all I got was a bunch of questions and comments on the camera and photography. I was walking right into booths to get photos of their items.


Aug 24, 2012 at 03:21 PM
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