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:
![](https://i.imgur.com/ewarF.jpg)
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?So there you have it...
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.
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Filed Under: copyright, pebble beach, trademark, trees
Reader Comments
The First Word
“Link to the Drawing
Just so we're clear on what we're actually discussing, I thought it would be helpful to add a link to a copy of the actual mark:http://tsdr.uspto.gov/documentviewer?caseId=sn77369756&docId=DRW20080115101125
I am curious though, since the oldest live registrations I could find are pretty new (2000s), if they're actually updating the silhouette to match the current look of the tree, or if they're trimming the tree to keep it in line with the 1919 drawing, because it does look pretty similar.
Of course, none of that takes away from the absurdity of any of this, I'm just trying to provide a bit more context.
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Yes, what are "location rights"?
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Re: Yes, what are "location rights"?
Not this case though, the tree grows by itself and the rocks there are at least a few thousand years old.
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I'd love a link to an artilce by a movie clearances person
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Re: Private Property
> location rights as well.
So that means any photos taken from the water are fair game.
Actually, the beach/coastline can't be private property, either. Every inch of the coast is public property by state law. There's no such thing a private beach in California. Many wealthy Malibu beach house owners have long tried to keep their beaches private, even going so far as to erect fences to block access, only to be sued and told they can't keep the riffraff from traipsing across the scenic view they paid millions for.
The 'beach' is defined under law to be so many feet inland from the high tide line, so whatever that is, it can't be owned by Pebble Beach and any photos taken from there would be free of contractual obligation.
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"If You Were A Tree... What Kind Of IP Protection Could You Get?"
but you are not dead, past and gone in oblivion, because if you were you would not be reading this post so the title is incorrect.
The correct title should be:
"If You are A Tree... What Kind Of IP Protection Could You Get?"
There that places the action in to the present, with you alive, not in the past, with you dead.
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It just doesn't matter...
It just doesn't matter...
It just doesn't matter...
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FTFY :-)
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Other than that, pretty much ANY scenery, natural element or the likes should be good to photograph and sell. Reminds me of some photographers suing because another photo looked like his/her. There's no such a thing, it's nearly impossible to have 2 exactly equal pictures since there will always be slight variations to the angle and environment (photographer hight, dynamic clouds and elements etc). At the time TD reached the spot on conclusion that you cannot copyright the idea but rather the execution of that idea. So If I use exactly the photo you took it's an offense but if I go to the place myself or set up a similar scene myself then it's good to go.
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Same in Oregon. The beach is legally a state highway, and it's technically possible to walk the entire coastline without setting foot on private property.
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But one question - how is this helping "art and innovation"...?
This supposed copyright and patent legal morass?
Seriously - someone explain how it's helping now, given all the evidence in front of us - I challenge someone to do that.
Try it - show how it's actually helping in light of the evidence of what it hurts.
You never know - a potentially endearing piece of art could have come from photos like these - like an Ansel Adams photos many of us are fond of, but now, could he get away with his photos?
No, not legally.
So much for Art and Music, nice knowing you - you've been corporatized.
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Go ahead and lie to yourself about that, you know deep down, it's just another can of worms being opening.
One of two things must die:
Patent/Copyright law **OR** Music/Art
Take your pick.
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There wouldn't need to be any confusion if the issue were dilution. See, e.g., Pebble Beach v. Tour 18, 936 F.Supp. 1299, 1350-54 (S.D. Tex. 1996) (finding service mark and trade dress dilution).
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Average Cunt?
Name-change?
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There is something wrong with you for being such a control freak that you felt the need (and continue to feel the need) to convince me that I should have commented in the way you think I should have commented.
Here's my comment to you now: Go fuck yourself.
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There is something wrong with you for being so insecure you can't take any criticism without immediately resorting to childish name-calling.
Here's my endless refrain to you now: grow up.
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"My comment was relevant and respectful, and I believe I added something to the conversation."
Yes, because the definition of "adding something to the conversation" is epitomized by calling people an "angry little asshole" and "angry cunt."
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Really? I've only had several posts over the years picked as "most insightful" but ok, I guess I have nothing to contribute. Well, except for all those other times when I have shredded your "rah rah the law is the law copyright uber alles ZEIG HEIL!" rants to pieces.
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Ridiculous!
Claiming copyright on such things is ridiculous... those would all be protected under design and method patents of course!
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But Mike!
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Re: But Mike!
Damned EEs!!
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Re: Re: But Mike!
Shoulda been a reply to the horticulture comment.
Please note that while this comment is subject to the rules and licensing agreements of this forum, the associated FAIL is the original protected work of the poster. All shame reserved.
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Who speaks for horticulture?
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If the land was bare when they bought it, fine and good. But if a tree was already there, does the attachment of the trees work lay any claim o. The property either for ownership or for limiting subsequent rights of ownership?
If Billy Madison came up to the tree, could the tree by rights demand, "Stop looking at me Swan!!"
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Re: Re: Who speaks for horticulture?
Problem is, they don't own the beach where it sits-- by law they can't-- and they can't give the tree what they don't own to begin with.
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contract law - 17-mile drive??
Or do they have a 17-mile coastal range that would prevent me from taking my boat some 100 meters from the tree and making as many photos as I want without signing ANYTHING?
Of course, I couldn't make photos from the same angles as I could from the Pebble compound, but that's not the point ;-)
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Depends
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Anyone using pictures of my smelly butt will be sued.
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I do see the hobgoblin of copyright appear every now and then in discussions concerning photos, paintings, etc., but the law could not be more clear that snapping away, painting away, etc. is in no way restricted under copyright law.
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Being in a car allowed into Pebble Beach != contract.
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Seeing that the pretty blue text that says CC-BY-SA-2.5 is a link to the Wikipedia page that has all the pertinent info, I would think they are covered.
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Link to the Drawing
http://tsdr.uspto.gov/documentviewer?caseId=sn77369756&docId=DRW20080115101125
I am curious though, since the oldest live registrations I could find are pretty new (2000s), if they're actually updating the silhouette to match the current look of the tree, or if they're trimming the tree to keep it in line with the 1919 drawing, because it does look pretty similar.
Of course, none of that takes away from the absurdity of any of this, I'm just trying to provide a bit more context.
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Lone Cypress Tree
Trademarking a tree! Maybe. Copyrighting nature? Ridiculous!
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