Trade Dress Protection

Q. I’m beginning a montage of Yankee Stadium views to give a friend. Even though I’m not selling it, I don’t know whether he will. The Yankees’ business office wasn’t able to tell me whether the building is under trade dress protection. How can I find this information?

A. Unfortunately, there’s no directory identifying which structures are protected by trade dress. A knowledgeable art or intellectual-property attorney is the best resource to help determine whether or not a structure enjoys trade dress protection.
 
The trade dress doctrine protects an item’s distinctive “look and feel.” For there to be protection, however, the protected portions must not be functional. For example, McDonald’s golden arches are protectable trade dress, as is the sensual shape of a Coca-Cola® bottle. Both are registered on the Principal Trademark Registry, since, as of this date, there is no registry for trade dress.
   
Like trademarks, trade dress can be used or reproduced as long as there is no likelihood that consumers will believe there is sponsorship by or other affiliation with the trade dress owner. So an image of an item protected by trade dress, whether a Coke® bottle or a building such as Yankee Stadium®, would be infringing only if consumers were likely to think the art was created or sponsored by the trade dress owner, or that the artist was affiliated with the trade dress owner.

Further, because virtually all distinctive characteristics of the stadium are functional, they cannot enjoy trade dress protection. For this reason, creating a montage of the Yankee Stadium® would not in itself infringe any possible trade dress in the stadium.

Note: Copyright laws are subject to change. This article was originally published in the March 2008 issue of  The Artist’s Magazine and reflects the laws in effect at the time the article was written.

Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.

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