New York Stock Exchange Claims Rights to All Photos of Trading Floor

In November 2010, Talking Points Memo published an article that included a wire photo taken on the New York Stock Exchange trading floor. Yesterday they received a cease and desist letter from the NYSE claiming that photos of the trading floor cannot be displayed without the NYSE’s permission, and that it owns trademark rights to images of the floor:

NYSE has common law and Federal trademark rights in and to NYSE’s name and images of the Trading Floor […] NYSE owns Federal tradmark rights in one depiction of the Trading Floor and common law rights in the Trading Floor viewed from virtually any angle […] Accordingly, NYSE has the right to prevent unauthorized use of its Trademarks and reference to NYSE by others. [#]

You can read the two page C&D letter here. What are your thoughts on this?

(via Boing Boing)

Image credit: NYSE trading floor (tilt-shifted) by champura

  • Anonymous

    My turn to be the enemy of creativity…

    So What?

    White men monetizing space, where’s the news?

  • Alex Wild

    Talking Points Memo can tell NYSE to suck it. Journalistic coverage of the stock exchange is a classic example of Fair Use if there ever was one.

  • Anonymous

    NYSE has the right to send a C&D… same thing goes for any Casinos in Las Vegas (I live in Vegas) or a storefront… you are required to get property releases to use photos for commercial purposes if the building is trademarked (ex. Eiffel Tower’s night-time lighting is trademarked) or a Logo shows. Also, C&D is not a legal binding document to remove… they have to take to a judge to get it legally ruling to require removal.

  • Anonymous

    Sometimes C&Ds are hot air, it shouldn’t happen, but it does.  I’d say those getting a C&D should talk to a trademark lawyer.  They can dig into the the C&D, the trademark filings, trademark legislation, the case law, etc and give you an opinion based on that.

  • Dov

    Talk about dead on arrival. and a waist of a good D&D

  • bob cooley

    Well that’s the rub; If it were an article about the NYSE, then it would clearly fall under fair use.  But the article isn’t about the Exchange (in fact no where in it is the NYSE named either in acronym or full name).   The article being about insider trading doesn’t automatically make all things that have to do with the financial world fair game (and the trading mentioned in the article could have been on the NYSE, AMEX, NASDAQ, a foreign exchange, etc etc).

    Photographers allowed onto the trading floor are given pretty strict ground-rules about usage that must be agreed to before they can create images on-site, and as the NYSE doesn’t sign a property release, they do have the right to control the use of the likeness of their property and trademarks.

    If you read the C&D, it specifically states their objection is that the specific placement of their trademarks are being used in conjunction with a negative news story that has nothing to do with the NYSE.

    There are MANY images of the NYSE being used for journalistic purposes every day – and the NYSE doesn’t challenge images in this manner if the article is about the NYSE, or if its about the market in general and specifically cites the NYSE – even if its negative. 

    This is a wire-photo, so the photographer certainly isn’t to blame for getting it wrong, the use of his image along with a story ABOUT the NYSE would clearly be fair use for journalistic purposes – and Taking Points Memo probably thought this would be a fair use and most likely acted in good faith; but that intention doesn’t make it fall under fair use.   Just being a journalistic enterprise does not automatically make everything fair use – it has to be specifically relevant.   TPM just dropped the ball on this one.

    I’ve been a professional shooter for over 25 years, and spent over 15 of that as a photojournalist – I’m not taking any sides here (except what is correct by the copyright statutes) – Its important to have a good understanding of copyright and what fair use really means and includes.  By misunderstanding it we only serve to weaken our rights when they come into question.

  • Anonymous

    The problem with your argument is that their claim is not tied to copyright. So copyright law is irrelevant. Their claim is about trademark. The reason they didn’t make a copyright claim is that they know they have no basis for a copyright claim.

  • bob cooley

     Josh,  Sorry – to the contrary.  I’m not arguing this is a matter of copyright at all. My point is that this doesn’t fall under the Fair Use exclusion of copyright law because it doesn’t meet the criteria. If it did, the NYSE’s trademark argument would become moot. 

    Their point is that because this isn’t a proper journalistic use of the image, its not covered under the journalism exclusion, therefore they can enforce their right to guard their trademark (a property release signed by the NYSE would give the photographer and his assigns (such as TPM) the right to use the images under the conditions of that release – that’s a matter of trademark, not copyright). But since no release exists, no rights are given to show their trademark in an improper fashion.  If the journalism fair-use exclusion applied, there would be no need for the release (same with any property or personage).

    Also, and this is likely the more important bit – its MUCH easier to litigate trademark and win if you are a plaintiff than it is to win a copyright case.  In copyright, the litigant first must prove monetary loss to proceed, with trademark you only need show potential damage to your brand to win.  

    My point is that Fair Use would trump the entire issue, but because its not covered by that exclusion, they are able to pursue the defense of their trademark/likeness.