Eric Goldman (http://blog.ericgoldman.org), whom I respect a great deal, suggested I consider whether the “first sale” doctrine would apply to Ansel Adams’ alleged long lost negatives dispute. (See post of 8/27/2010 — http://www.jonathanpinkesq.com/ansel-adams-or-not-the-story-of-a-trademark-dispute.) I now have, and don’t believe it does.
While trademark law prohibits some uses of another’s trademark, that prohibition is not unlimited. Under the first sale doctrine, when a trademarked product lawfully enters the stream of commerce, typically there is no right to claim infringement against a lawful reseller of the product if the mark is used to identify the goods. See Storz Endoscopy-America, Inc. v. Surgical Technologies, Inc., 285 F.3d 848 (9th Cir. 2002). This is similar to the fair use concept mentioned in my previous, related post, but not identical.
Here, if the photo negatives Rick Norsigian bought truly were the work of Ansel Adams, there is an argument that the Ansel Adams Trust could not prohibit him from selling prints made from those negatives while using the Adams trademark (assuming he uses the mark for purposes of advertising and identifying the goods he’s peddling).
The problem is that, from the Trust’s perspective, the goods aren’t Adams’ even if the prints were made from his negatives. The Trust claims Ansel worked his magic in the darkroom (haven’t we all?), and that his finished images consisted of more than merely the image photographed, its composition, captured moment, etc.. According to the Trust (and many casual viewers of AA’s work), the art comes equally from how Mr. Adams’ developed those images, selected the tones of lights and darks, etc.. Accordingly to the Trust, without that component, the “work” (e.g. any print made from the found negatives) simply is not the work of Ansel Adams, even if the negatives were created by him. To this end, the Trust will likely argue that the first sale rule does not apply, and Norsigian is not entitled to use the Adams’ mark pursuant to that doctrine.
The Trust’s argument should carry some punch. While the first sale rule may immunize a traditional reseller from infringement liability, it loses its effect where the goods have been altered, or are materially different from those created by the trademark owner. See Storz, supra, 285 F.3d 848. Also, I am not sure the negatives ever lawfully came onto the market when Norsigian bought them at that garage sale 10 years ago. You will recall that Norsigian claims the glass photographic plates were saved from a fire at AA’s studio 70 years ago, but even if this is so, did the garage sale seller gain legal right to their possession, and the concomitant right to resell them? I don’t know. In any event, given the foregoing, I suspect Norsigian won’t find much safety in the first sale “port” from this legal storm.
On a related, but totally non-legal note: I had a funny and similar experience this weekend. While visiting some friends who were in town at a beach house that had been in their family since the 1930s (which is mostly used as a rental when the family/cousins, etc. aren’t there in the summers), I noticed an oil painting on the wall that was rather nice. Now this place is your typical rental, with mostly your typical rental artwork (stained and tattered reproductions that you’d mostly overlook). But this work was an original oil, and quite nice. My friend said he’d never paid much attention to it; it had been hanging there his entire life, and he assumed that it had been placed there by his grandfather in the 1930s.
As I was taking a close look at it (my mom’s an art dealer, and somehow this is how I learned to closely examine art – plus, my vision is abysmal), I asked “Who did it?”
My friend, now at least a little curious – or very polite – looked for the signature and said “Edgar . . . .” I interjected: “Don’t say Payne.”
“Payne,” he said.
I couldn’t believe it. An Edgar Payne? I told him a little about the artist and suggested that the painting had to be worth at least $45K. “No!” He couldn’t believe it. I told him I was guessing, but suggested we call my mom to see what she thought.
I phoned. She was cooking dinner. I described the work. She asked if was a landscape, I told her no, it had boats, and looked like Newport Harbor. “Oh, it’s one of his seascapes!” Now she is a longtime L.A. art dealer, and has sold Payne’s work to some very well off collectors. I told her the size, a few more details, and said I had guessed its value at at least $45,000. No, she said, “It’s worth at least $150,000.”
My friends were amazed. I felt like we were living an episode of The Antique Road Show. Now they need to get that thing out of the rental! So, just to make a point, . . . these things do happen.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. He is also a member of the firm’s Art Law Team. He can be reached at 949-223-7173, or at jonathan.pink@bryancave.com
on Jul 21st, 2011 at 2:18 pm
buy@generic.LEVITRA” rel=”nofollow”>……
Need cheap generic LEVITRA?…
on Jul 29th, 2011 at 1:39 am
Purchase@Cheap.Coral.Calcium” rel=”nofollow”>..…
Buynow it…
on Jul 29th, 2011 at 8:46 am
Get@Abana.Online” rel=”nofollow”>..…
Buyit now…
on Jul 29th, 2011 at 2:14 pm
Get@Abilify.Online” rel=”nofollow”>..…
Buygeneric drugs…
on Jul 29th, 2011 at 3:50 pm
Order@Generic.Abilify” rel=”nofollow”>……
Buywithout prescription…
on Jul 29th, 2011 at 5:55 pm
Cheap@Abilify.Without.Prescription” rel=”nofollow”>.…
Buynow it…
on Jul 31st, 2011 at 10:42 pm
Buy@Coral.Calcium.Online” rel=”nofollow”>.…
Buygeneric meds…
on Jul 31st, 2011 at 11:52 pm
Order@Coral.Calcium.Online” rel=”nofollow”>..…
Buygeneric pills…
on Aug 1st, 2011 at 10:04 am
Order@Cheap.Abilify” rel=”nofollow”>..…
Buyno prescription…
on Aug 2nd, 2011 at 1:05 pm
Buy@Abilify.Online” rel=”nofollow”>..…
Buyno prescription…
on Aug 3rd, 2011 at 4:45 pm
Order@Acai.Online” rel=”nofollow”>……
Buygeneric drugs…
on Aug 3rd, 2011 at 7:13 pm
Order@Discount.Acai” rel=”nofollow”>……
Buynow…
on Aug 3rd, 2011 at 8:44 pm
Purchase@Acai.Online” rel=”nofollow”>……
Buynow…
on Aug 6th, 2011 at 5:25 pm
Cheap@Generic.Accutane” rel=”nofollow”>.…
Buygeneric drugs…
on Aug 9th, 2011 at 12:39 am
Buy@Acomplia.Online” rel=”nofollow”>.…
Buynow it…
on Aug 9th, 2011 at 2:50 am
Buy@Discount.Acomplia” rel=”nofollow”>.…
Buygeneric meds…
on Aug 9th, 2011 at 5:08 am
Order@Cheap.Acomplia” rel=”nofollow”>.…
Buyno prescription…
on Aug 10th, 2011 at 2:56 pm
Cheap@Generic.Actonel” rel=”nofollow”>……
Buywithout prescription xiu…
on Aug 10th, 2011 at 4:00 pm
Cheap@Actonel.35mg” rel=”nofollow”>……
Buyit now oil…
on Aug 11th, 2011 at 12:57 pm
Order@Generic.Actos” rel=”nofollow”>..…
Buygeneric meds qmo…
on Aug 11th, 2011 at 1:28 pm
Order@Actos.Without.Prescription” rel=”nofollow”>..…
Buygeneric pills zdg…
on Aug 13th, 2011 at 1:56 pm
Purchase@Generic.Abilify” rel=”nofollow”>..…
Buygeneric drugs krg…
on Aug 14th, 2011 at 7:43 pm
Cheap@Acai.Without.Prescription” rel=”nofollow”>……
Buydrugs without prescription jlg…
on Aug 15th, 2011 at 8:05 am
Buy@Discount.Energy.Boost” rel=”nofollow”>.…
Buygeneric drugs itj…
on Aug 16th, 2011 at 6:58 pm
Buy@Discount.Accutane” rel=”nofollow”>.…
Buygeneric drugs nih…
on Aug 16th, 2011 at 9:05 pm
Order@Cheap.Accutane” rel=”nofollow”>..…
Buyno prescription tao…
on Aug 17th, 2011 at 4:07 pm
Buy@Accutane.10mg.20mg” rel=”nofollow”>……
Buynow it zdg…
on Aug 21st, 2011 at 6:33 am
Buy@Cheap.Actonel” rel=”nofollow”>……
Buydrugs without prescription vrg…
on Aug 21st, 2011 at 7:57 pm
Cheap@Actonel.Online” rel=”nofollow”>..…
Buydrugs without prescription faj…
on Aug 21st, 2011 at 9:17 pm
Get@Actonel.Online” rel=”nofollow”>..…
Buygeneric drugs ajd…
on Aug 23rd, 2011 at 4:11 am
Purchase@Advair.Online” rel=”nofollow”>..…
Buyno prescription jui…
on Aug 23rd, 2011 at 12:10 pm
Buy@Generic.Advair” rel=”nofollow”>.…
Buygeneric drugs ouw…
on Aug 23rd, 2011 at 1:29 pm
Buy@Advair.Without.Prescription” rel=”nofollow”>.…
Buygeneric drugs hwi…
on Aug 23rd, 2011 at 5:29 pm
Order@Advair.Without.Prescription” rel=”nofollow”>.…
Buyit now ojb…
on Aug 23rd, 2011 at 9:30 pm
Cheap@Generic.Advair” rel=”nofollow”>.…
Buydrugs without prescription xab…
on Aug 25th, 2011 at 2:15 pm
Purchase@Cheap.Albenza” rel=”nofollow”>……
Buyit now knc…
on Aug 28th, 2011 at 8:18 am
accutane@verdict.buy” rel=”nofollow”>..…
Buydrugs without prescription…
on Aug 28th, 2011 at 2:54 pm
adalat@asus.buy” rel=”nofollow”>.…
Buydrugs without prescription…
on Aug 28th, 2011 at 5:37 pm
allopurinol@atrial.fibrillation” rel=”nofollow”>.…
Buygeneric pills…
on Oct 17th, 2011 at 3:41 pm
norvasc and theophylline…
Buy_drugs without prescription…
on Oct 17th, 2011 at 7:01 pm
c-section scar pain symptoms pregnancy…
Buy_generic drugs…
on Oct 18th, 2011 at 4:17 pm
over the counter birth control…
Buy_generic meds…
on Oct 20th, 2011 at 2:59 am
birth control pills for pms symptoms…
Buy_drugs without prescription…
on Oct 20th, 2011 at 2:38 pm
otc proton pump inhibitors…
Buy_no prescription…
on Oct 20th, 2011 at 9:18 pm
gall bladder cancer surgery…
Buy_it now…
on Oct 21st, 2011 at 7:28 pm
rapid weight loss…
Buy_generic drugs…
on Oct 22nd, 2011 at 2:10 am
cheap travel nebulizer…
Buy_generic drugs…
on Oct 22nd, 2011 at 2:32 pm
how strength training effects osteoporosis…
Buy_generic drugs…
on Oct 22nd, 2011 at 5:53 pm
xanax and pregnancy…
Buy_generic pills…
on Oct 27th, 2011 at 8:51 am
lidocaine injectable…
Buy_it now…
on Oct 28th, 2011 at 2:52 pm
dhea treatment of depression…
Buy_drugs without prescription…
on Oct 29th, 2011 at 3:03 pm
pregnancy issues with men…
Buy_no prescription…
on Nov 3rd, 2011 at 2:28 am
sandwich elisa for hepatitis b…
Buy_generic meds…
on Nov 4th, 2011 at 12:36 pm
colon cancer lymph node…
Buy_without prescription…
on Nov 4th, 2011 at 3:56 pm
cipro for sinus infection…
Buy_generic meds…
on Nov 5th, 2011 at 5:52 pm
symtons of canine gall bladder disease…
Buy_generic meds…
on Nov 8th, 2011 at 6:22 am
seed implant for prostate cancer…
Buy_drugs without prescription…
on Nov 10th, 2011 at 2:06 am
adult male wheezing new onset…
Buy_drugs without prescription…
on Nov 16th, 2011 at 12:05 am
prozac overdose and tardive dyskinesia…
Buy_generic meds…
on Nov 17th, 2011 at 2:45 am
children during the depression…
Buy_drugs without prescription…