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Copyright (c) 1997 Fordham Intellectual Property, Media & Entertainment Law Journal
Fordham Intellectual Property, Media & Entertainment Law Journal

What's Wrong with this Picture? When the Lanham Act Clashes with Artistic Expression

Spring, 1997

7 Fordham Intell. Prop. Media & Ent. L.J. 821


Tara J. Goldsmith *


A century or so ago, Paul Cezanne reached into a fruit basket and said, "With this apple, I will astonish Paris.' So he did. He painted a picture of that apple so magnificent that it takes the breath away. If he tried that today, he'd probably have the apple growers suing him for royalties. Sillier things have happened. 1


Photographer Chuck Gentile took another bite at the proverbial apple when he attempted to astonish Cleveland, a city, unlike Paris, not particularly renowned for its artistic achievement. Gentile photographed a downtown museum against a Lake Erie sunset, made it into a poster, entitled it "THE ROCK AND ROLL HALL OF FAME AND MUSEUM IN CLEVELAND," and offered it for sale throughout the metropolitan Cleveland area. 2 The Rock & Roll Hall of Fame and Museum ("Museum"), however, was less than thrilled; it sought to enjoin all publication and distribution of Gentile's poster on the grounds that it violated the Museum's trademark rights in both the building and the name, "ROCK AND ROLL HALL OF FAME." 3 To Gentile, the idea that the Museum would sue him over an artistic photograph seemed like the work of the "over-thirty crowd," so mistrusted during the 1960s. 4 Gentile asserted that he did not need the Museum's permission to sell the posters because the building is in a public place. 5

Unfortunately for Gentile, the United Stated District Court for the Northern District of Ohio disagreed. 6 In Rock ...
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