By “architectural works,” this includes buildings – but just protection from a builder duplicating the design of a building. Photography of the building is explicitly exempt.

What is not included, according to the Copyright Office...

”Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.”

So, the first sentence of the proposed rule is incorrect. The condominium association does not hold a copyright of any kind on its name or building image.

Furthermore, copyright is provided by federal law. There are no state laws pertaining to copyright.

So, there is no copyright. But can someone use an image of Marina City without the permission of the condo association?

They not only can, but they do. Marina City has appeared in countless films, videos, and commercial images. There is no evidence that anyone has sought permission from the condo association, let alone paid any money.

The association may be confusing copyright with trademark, and even that is a longshot.

The U.S. Court of Appeals for the Sixth Circuit decided (in the case of Rock & Roll Hall of Fame & Museum v. Gentile Prod.) that the design of a building does not serve as an effective trademark. The museum had complained about a photographer who was selling a poster of its building, that it was a trademark infringement.

However, the court noted the museum never used any particular photograph or consistent view of the building in a consistent manner. The photographer did not use the image in such a way to indicate the poster was authorized by the museum. The building was not a trademark, said the court, and the poster did not violate any trademark rights.

So, we’ve determined the condo association has no ownership or control over images of the building. But a more fundamental question would be...

Does an image of Marina City represent Marina Towers Condominium Association?

If you asked 100 people on Wacker Drive for the name of this building, no one would say, “Marina Towers Condominium Association.” The building is mixed use, with Transwestern Commercial Services managing the commercial property for completely different owners.

Outside of this building, Marina Towers Condominium Association enjoys negligible name recognition. No one thinks of them when they see an image of the building, and so if you merely use of an image of the building, or refer to “Marina Towers” or “Marina City,” no one is going to confuse you with the MTCA.

Wait a minute – tell me more about that two thousand dollars we can make every time someone wants to use our building image commercially!

Good luck with that. Like I said, Marina City appears in countless films, videos, and commercial images. This includes films by studios who surely have access to the best intellectual property attorneys that money can buy. Either they are ripping us off, or they simply understand the law.

(Left) Near the Bank of America branch on Michigan Avenue, this large photograph of the Marina City parking ramps and residential floors is displayed prominently in an exterior window.

The fact is, any building in plain view – let alone a historic one that gets photographed every few minutes of every day – has no expectation of privacy. The building shows up every day in some sort of advertisement, and there is nothing we can do about it. You can stand on a public street and photograph a building and with very rare exception you do not need anyone’s permission.

If non-news video was shot from the property, that is a different situation – seeking permission and paying a fee is not out of line. But the payment is for physical access to the property, not use of the video.

I also spoke with the general manager of WLS-TV and she was very skeptical that any local television station would pay for use of the building image in non-news video.

I have been photographing buildings professionally since 1999 – including buildings more valuable than Marina City that were filled to the rafters with lawyers – and I’ve never experienced, nor even heard of, a building owner trying to charge someone for use of an image of their building.

I have the largest collection of contemporary images of Marina City and I have a very generous usage policy – including allowing the condo association* to use my images in any way at no charge. I donated the print that is on display in their office. When they wanted to make post cards out of it and sell them, I did not complain or ask for a piece of the action.

^*I have since rescinded this offer to the condo association.

(Left) A print advertisement (in the Wall Street Journal) for Trump International Hotel & Tower Chicago in which Marina City appears without the permission of the Marina Towers Condominium Association. Assuming Donald Trump has access to competent attorneys, why did he not get permission from us to use this image commercially? Doesn’t he know about the “common law copyright on the association name and building image under federal and state law?” Maybe he can’t afford the $2,000 fee. Or maybe he doesn’t have to get our permission.

In this print advertisement in Chicago Tribune Magazine for Waterview Tower, Marina City appears without permission in an aerial view of River North. At bottom of page, more examples of Marina City showing up in films and videos, uncompensated and without our permission.

But surely the condo association has some rights, right?

I hate to be the one to tell you that Marina Towers Condominium Association does not even have intellectual property rights to its own name. A Google search will show there are other condominium associations with that exact name, and you may have noticed none of them are suing us for infringement.

You cannot copyright or trademark a building name. Otherwise, you'd see Empire State Building™ all the time. So unfortunately, the condo association has no claim of ownership to the words “Marina Towers” or “Marina City.”

Unless the condo board has written a poem (and if so, I would really enjoy reading it), they have nothing that can be copyrighted. And they have nothing that can be trademarked, either.

So why is this a problem, exactly?

It opens up a proverbial Pandora’s Box of new issues. Who is going to police use of building images? What legal rights do you have when trying to get an injunction against someone doing something that is protected by federal law? Who is going to pay for the legal challenges that will surely result from this? Why even hassle someone who is giving us fair, free publicity that might even increase property values? Or are we only going to hassle people we don’t like?

If you want a bottom line analysis, I can assure you that the cost of enforcing such a rule will far outweigh any financial benefit. I'm sorry, but no one is going to pay you $2,000 when they can use an image of your building for free, and they can.

It almost makes me want to suggest the MTCA drop the intellectual property issues, which they clearly do not understand, and stick to real estate management – something at which they appear to do reasonably well.

And who are you again?

My name is Steven Dahlman. I rent a studio apartment in the east tower. I am a professional photographer specializing in architecture. My customers include architects, construction companies, interior designers, property managers, real estate developers, advertising agencies, television stations, magazines, newspapers, book publishers, hotels, restaurants, and a variety of other businesses. And ironically, the condo association.

Before that, I was in radio and television, going back to the late 1970s. The topics of copyright and other intellectual property issues come up from time to time, and I have kept up-to-date with them for about 30 years.

I am also the web designer and developer of this site.

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