You obtained a brilliant shot of the inside of the new Orlando City stadium. A blaze of purple spirit, a gorgeous image. Undeniably Orlando! And you have so many theme park photos! Can you sell T-shirts with these photos or use them to advertise your business?
Of course you can. However, be warned: You may be sued if you are using it without the right permission. Know the law, and tread lightly.
Most of us are aware that using someone’s trademark or artwork without permission, or even an individual’s name or likeness, can violate intellectual property laws. But did you know that there is a law against using a place or object?
Florida has a relatively unknown law that prohibits certain photographs and images of places where you pay an admission. Similar to its more commonly cited cousin — misappropriation of a name or likeness — this statute — section 540.09, Florida Statutes — also prohibits the unauthorized publication in an advertisement or product sales, but, with this statute, the prohibited subject is an images of places where admission is charged.
The image must be used in connection with the sale or advertising of a product or service.
First, the image could be a photograph, drawing, “or any other visual representation.” It is not limited to just photographs. So if you make a drawing of that blaze of purple and it’s the focus of your ad, you could still be violating the statute.
To violate the statute, the image must have been used “in connection with the sale or advertising of any other product, property or service.” The statute is written broadly enough that the publication is not necessarily limited to advertisements. Sales of key chains or coffee mugs featuring photographs or illustrations, for example, of Disney’s Main Street, could be a violation. On the other hand, images published as part of a “bona fide news report or presentation having a current and legitimate public interest” are excluded — so long as the images are not “used for advertising purposes.”
However, if the property captured in the image is merely ‘incidental to the principal subject” of the image “and not calculated or likely to lead the viewer to associate” the property with the product or service being sold, it would not be a violation.
For example, if you photograph a model at Disney, and it’s a really great picture and the only background is unrecognizable brick wall, you’re probably safe. But don’t take that picture before the über-recognizable Cinderella’s Castle.
Section 540.09 encompasses not just buildings and open areas, but objects too.
The prohibited subject matter is almost anything found in a place where you need to pay an admission fee. It includes buildings, areas, and objects within those areas. Places that come immediately to mind are theme parks, concert halls, and sporting venues. For example, you might want permission before publishing a sneaker advertisement showing a pair of cleats on the field at Camping World Stadium.
Objects that come to mind are those in a museum. For example, you might be a fan of Louis Comfort Tiffany’s stained-glass window Daffodils and think it would be perfect to include in your advertisement for a new spring or summer fragrance. Certainly, copyright laws do not apply, so you’re OK, right? Because Daffodils was created in 1916, based on federal copyright law at the time, copyright protection could have only lasted for a maximum of 56 years (28 year term + 28 year renewal). Therefore, the image would have been entered the public domain by — at the latest — the 1970s. Right?
Well, republishing the image in an advertisement would not necessarily be a copyright violation. But this is not a copyright statute. Rather, this statute, 540.09, offers the Morse Museum of Art in Winter Park, which owns the physical property of the stained glass window, an opportunity — outside copyright laws — to protect its collection. In other words, if you want to buy a scarf with a Tiffany motif – you’ll probably need to buy it from the Morse Museum’s gift shop.
Of course, if you get permission, you’re gold. To be safe, it is best that the consent be in writing. It does not need to be a detailed, formal contract. The statute allows for “written or oral consent,” so if the oral consent is later journalized in an email, short note, or even a text message, that should suffice. You should make sure, however, that the person giving consent has the actual authority to do so, and that you’ll be able to prove what the email or text message means.
What is the worst that can happen?
The term “worst” is subjective, really, as some people might enjoy litigation. However, for most people, the answer is: You can get sued. The owner or operator of the venue can sue you “for any loss, damage, or injury sustained” as a result of your unauthorized images, “including an amount which would have been a reasonable royalty, and for punitive or exemplary damages, and such unauthorized sale or use may be enjoined.”
But what about existing Copyright Law and other laws?
This is a Florida, not federal, law, and would not stand in the way of or supersede federal law. A hypothetical question come to mind which is: What if, say, you take a photograph of an image that is protected by federal copyright law and used it in your ad. Could the museum sue you? Hypothetically, yes. And so could the copyright owner. But the museum would not sue you for copyright law — rather, it would be for misappropriation of its property.
Here’s another hypothetical: Say you get a contract, signed by the copyright owner, licensing you the right to use the artwork in your advertisement. Can the museum still sue you? Technically, according to this statute, yes they could. Would they win? I don’t know. Could you contest the constitutionality of the statute? Hmm, maybe you could say that, pursuant to the United States Copyright Laws, which Congress drafted by the power of the United States Constitution, the copyright owner had a right to license his work to you, and now this statute is impeding his right to license his work, and therefore it is unconstitutional.
In that hypothetical scenario, the law does not work, or at least it does not seem to be. It seems to have a strange overlap with copyright laws. However, the law has been on the books since about 1967 and there are virtually no appellate cases discussing it. Which brings me to the next question:
How come I’ve never heard of this before?
Honestly, who knows why there are not more lawsuits related to this statute. One reason is probably because there is no attorney’s fee provision. Therefore, if someone is going to sue for it, that person better have a good reason and expect to pay a lot of money to protect their work, because their attorney’s fees will likely not be recoverable.
Another reason is that the companies who probably would want to use it (I’m thinking the big theme parks) probably avoid litigation by sending pre-suit cease and desist letters or, in the alternative, actually enjoy the promotion of their theme parks in advertisements. Dozens of companies sell vacation plans and put theme parks photos in them, but none seem to be sued. Why not? Maybe because the end result is beneficial to the theme park: More tickets purchased. That’s not to say there’s not a first time for everything (knock on wood).
Which brings me to a third reason: Maybe companies do not file the lawsuits simply because they do not know about the law. So, now you have it. If you own or operate a museum in Florida and you’ve seen your museum collection in people’s advertisements and the frustration has been keeping you awake at night, now maybe you can do something about it.