Fast Company reports that the company that maintains the Eiffel Tower holds a copyright in its nighttime lighting display, and thereby polices commercial use of (nighttime) photographs of the Tower (unlike the image of the Tower itself, the lighting display has not fallen into the public domain).

One photographer’s solution depicted here.

UPDATE: Great minds inspired by the same story.  Copyfight’s take.

From the Abstract from Bartow, The Hegemony of Copyright Treatises, University of Cincinnati Law Review, Vol. 73, pp.1-64, Fall 2004

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners and interest groups propose self-serving agendas, and courts are well aware that the parties to litigation all want to prevail when they advocate for particular legal conclusions. A copyright treatise editor could similarly have an economic interest in promoting particular interpretations of the law over others, but has no obligation to disclose this. Because no goal beyond articulating copyright doctrine in a manner that invites further uses and purchases of the pertinent treatise is facially evident, the tome has an appearance of objectivity and detachment.

This Article critiques the excessive reliance placed on copyright treatises by judges, lawyers, and even scholars and policy makers; explains why treatises in principle are not a legitimate source of positive law; describes the potentially undemocratic consequences of incorrectly perceiving treatises as nonpartisan, status quo baselines of extant copyright jurisprudence; and recommends an alternative approach to charting and cataloging developments in copyright law, the establishment and maintenance of a Restatement patterned after those promulgated by the American Law Institute in common law subject areas

Personal Note: I haven’t read this article so I don’t know how the author treated PATRY ON COPYRIGHT, but if you read Professor Patry’s discussion of the DMCA, for example, then you know what are his [clearly identified] personal viewpoints on legislation such as DMCA, and that he is no fan of the machinations of Congress, at least in that instance.

 

This NY Times article discusses product placement in movies, including the exchange from Million Dollar Baby about bleach being bleach, a discussion prompted no doubt by this 1967 Supreme Court decision ordering Procter & Gamble to divest itself of the then recently-acquired Clorox Company.

Others brands in recent movies include the Sanford Winery and Hai Karate.

Model does two hour photo shoot in 1986.  Nestle doesn’t tell him that it put the picture on the TASTER’S CHOICE jar.  He sees the jar for the first time in 2002.  Sues.  Gets awarded $15.6 million dollars.

Update: Scott Whiteleather writes ” . . . it is interesting to see an award like this for someone who is not a celebrity by traditional standards . . . ” noting that an unknown would likely receive $200,000 to $250,000 per year for what is ostensibly worldwide use.

However, Scott writes that the “distinguishing factor in this case is that this is not simply the use of an individual’s likeness in an ad.  Mr. Christoff’s photo was used on the actual product.  As such, I would suggest that the image became an integral part of the trademark.  Imagine the label without the smiling, contented face and consider whether the impact is the same.

In today’s legal climate, plaintiff’s often claim that the use of their image is actionable under an 1125(a) claim.  In many cases, the argument in tentative at best.  Here, however, the parallel between right of publicity and the Lanham Act is unmistakable.”