Monday, May 31, 2010

Stay-at-Home Mom Licenses Sears Tower Postcards: Lawsuit?

Dear Rich: I am a photographer that mainly specializes in art and portraiture, (okay, I'm MAINLY a stay at home mom). I recently came across a postcard company that wants to make cards and memorabilia of a few of my Chicago vacation images. One of the images is of the Sear's Tower. Is there some kind of property release required for that, or am I okay selling these images to a postcard company? I know you have said that some buildings have trademark protection. Also, I noticed that the Sear's Tower is now the Willis Tower and there is a trademark for and it is listed under Real Estate. The picture in question was taken before that trademark registration, does that matter? I really would appreciate your input on this. I would really love to sell this image but not at the expense of breaking the law. We're back at your statement  -- "Okay I'm MAINLY a stay at home mom." The way you capitalized "mainly" makes us a little sad, like the photography thing is not worthy in some way. The thing is that if somebody buys your postcard, they will know you MAINLY as the photographer who took that picture. Or maybe another way to look at it is like the Jeremy irons/Alfred Stieglitz character told the Joan Allen/Georgia O'Keeffe character in the O'Keeffe biopic, "It's all work until somebody buys it, then it's art."
Right, you had a question. You're fine to sell your image of the Willis (nee Sears) Tower as a postcard. The registration that you mentioned is not for the image of the building -- it is only for the words "Willis Tower" and it is only for use with real estate services. The Dear Rich Staff could find no trademark registration for the image or design of the tower (although a registration is not necessary to claim trademark rights). Ennyway, as we mentioned in a previous post, in order for someone claiming trademark rights in the building design to stop you, the following would have to be true: (1) the building would have to have an identifiable, distinctive appearance; (2) the building would have to be publicly associated with certain goods or services; (3) your use would have to be commercial (not editorial); and (4) your use would have to be linked to an offer or endorsement of similar goods or services.Based on that analysis, you should be good to go.
And speaking of photographs of buildingsCheck this out.