With those words, the condominium association at Marina City embarked on arguably its most contentious and most ridiculed quest ever, to control how images of Marina City are used.
A new rule would apply to unit owners at Marina City and to the rest of the world. It would prohibit owners from using the association name or building image in newsletters, on web sites, and in other communications in violation of the associations common law copyright under current state and federal law.
The rule would also define conditions by which anyone else could use the associations name and image. It was never made clear if that meant Marina Towers Condominium Association or Marina City, the latter of which, of course, included commercial property not controlled by the condo board. The consensus was that the combo board was claiming ownership of the name Marina City, despite sharing the name with other complexes throughout the world, and images of the complex, whether it showed the residential towers or the commercial property beneath it.
By policing use of name and image, the condo board believed it could make money from film makers, television stations, book publishers, advertisers, and anyone else wanting to show Marina City in their work, which would have to be approved by the board.
An example used was the local CBS affiliate, WBBM-TV, which the board believed had paid them $2,000 to show Marina City in television promotions.
||CBS has agreed to pay the $2,000 fee for the image of Marina Towers so that they can use Marina Towers and shots to and from Marina Towers for the nightly news introduction, claimed property manager David Gantt (left) at the September 7 MTCA meeting, and management has agreed to go along with that because it is good PR for the association.
The general manager of WBBM-TV denied this. Joe Ahern said on November 6 that his station rented space from MTCA to photograph the Chicago River. They did not shoot video of Marina Towers and, said Ahern, we do not pay to take shots of buildings.
The quest was not as quixotic as it may seem. Before technology and the Internet made enforcement of such a rule impossible, some buildings such as the Chrysler Building in New York, Hearst Castle in California, and the Rock and Roll Hall of Fame and Museum in Cleveland asserted such rights.
But the law was not on their side. While architectural works are protected by copyright from being duplicated, photography of a building, including distribution and public display, is explicitly exempt. Marina City, like most buildings, was in plain view and had no expectation of privacy.
And if the association really meant it had a trademark, not a copyright, that was toppled by the United States Court of Appeals for the Sixth Circuit, ruling in 1998 that the design of a building does not serve as an effective trademark.
And even if it did, trademark would be limited
|Trade names and brand rights are...only protectable in relation to the goods or services that are provided in connection with such trade name or brand, wrote Chicago lawyer Thomas Rosenwein (right) in an October 30 letter to MTCA president Donna Leonard. In other words, the MTCA does not own rights in the Associations name in gross, but only in connection with such goods and services that are likely to cause confusion to the consuming public. Of course, even in such situation, the doctrine of fair use would permit use of a trade name or brand.
Rosenwein, who specializes in intellectual property, said the proposed condo association rule will not only be contrary to federal law, but may serve to chill the creativity and free expression of artists and give false hope to those who are looking for alternative sources of income for the Association.
MTCA responded by backing away from its claim to rights under federal law and insisting the proposed ban on use of association name and image is valid under Illinois law.
||In a November 5 letter to Rosenwein, MTCA attorney Ellis Levin (left) said, The Association has never contented [sic] that it has statutorily copyrighted the name Marina Towers or the image of the building under the Federal Copyright Act.
Instead, Levin pointed to the Illinois Uniform Deceptive Trade Practices Act that prohibits business practices that cause likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, certification, affiliation, connection, or association with another business. The Act makes unlawful deceptive representations and anyone who, in the course of a business, vocation, or occupation, disparages the goods, services, or business of another by false or misleading representation of fact.
According to Levin, MTCA has a long history of enforcing its claim to the use of its name and the image of the building such as movies that use the building image, though he did not list any examples.
Every production company that filmed Marina City over the next few years was contacted and none said they were aware of any restrictions, nor would they ever consider paying such a fee.
One of Marina Citys neighbors said it would never charge such a fee. According to Mary Jo Mandula, Vice President of Properties for Tribune Company, which owned Tribune Tower at the time, you cannot charge for incidental shots of any building that appears in magazine photos, commercials, movies, TV shows, etc.
Response from local media not kind
What kind of idiot do you have to be, penned Chicago architecture writer Lynn Becker, to actually insert the phrase under Federal and Illinois law, when copyrights are a federal protection and have nothing to do with state law?
As Becker pointed out in his November 7 column, Stop Taking Pictures of Marina City!, theres also the inconvenient fact the condo owners only own the top 40 floors of each 60-story tower. Exactly how can they claim to own a copyright to Marina Towers when the first 20 stories of the towers, and the other structures of the commercial complex, are owned by someone else?
In an article titled Marina City Sick of All the Paparazzi, the Chicago website Gapers Block called the proposed MTCA ban on use of the condo associations name and image a head-scratchingly strange resolution.
Communications consultant Michael Doyle, who writes the urban life blog Chicago Carless, called the proposal laughable.
|Given that the association doesnt own the bottom 19 floors of either tower, wrote Doyle (right), the grounds on which yet another board-vs.-owner smackfest are being laid are once again like Emmentaler. That is, full of holes and cheesy.
Chicagoist joined the fray on November 9. Filed under Marina Towers Owns You, Louis Frascogna wrote, Such an ignorant rule suggests that any photo or film featuring any building would have to pay to use that buildings image. Since Chicagoist is a commercial venture, according to the association we are potentially at risk for copyright violation merely by using the name Marina Towers (which search shows is in use by no less than seven other cities). So let er rip, Marina Towers, Marina Towers, Marina Towers!
Rule still passes
At a special meeting of the Marina Towers Condominium Association board of directors on November 15, 2007, attended by about 75 unit owners, the proposed changes were passed unanimously. Board members tried to defend the new rule, saying, for example, it was needed to prevent publications from claiming to be officially sponsored by the condo association.
Or needed to shake down filmmakers. Said board member James Ward, What it boils down to is, when they want to make a movie here, we get the money! Do you want to give it up?
Ward started to mention the 2006 Allstate television spot, which was filmed on commercial property not owned by MTCA, but he was cut off by a unit owner explaining, Theyre renting the property.
When challenged by a unit owner that you cant copyright the garage, Ward responded, I didnt say it was a copyright. Im saying that we now are in a position where we derive some advantage.
MarinaWatchDog, an Internet bulletin board for residents, took 41 comments the next day.
An angry meeting, an unfair meeting, and a bullshit phony meeting were some of the descriptions, along with joke, farce, put-on, sham, and charade.
As one resident put it, The new rules passed without hardly any objection [from] the directors and it was voted on and passed unanimously. Every person that was allowed to ask a question opposed some part of the new rules, but the directors never considered any of them in their vote. I think we have sunk to a new low.
Another resident said MTCA president Donna Leonard insulted owners. Clearly all board members knew in advance that those rules would be passed, but Mrs. Leonard still sent out a letter, pretending to wish to hear owners comments...She went through the motions thats it. Owners should take note: this was proof of how were being treated like fools. And board members think its humorous. Its their victory. Their faces showed disdain for us. Arrogance and they were proud of it. We came with sincere comments and they just laughed and smirked. Now how does that make you feel?
Weve had difficult boards in the past, said another, but this board is by far the worst.
Patrick Lister, who spoke at the meeting about the new rule, said on MarinaWatchDog, Being a fan of the Bill of Rights, I am appalled and disgusted by what I saw at the board meeting. The MTCA board pissed me off last night. I cannot believe that bunch of nitwits and knuckleheads are running this outfit.