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Simon Phipps's personal commentary

Dear Simon

Thank you for your inquiry dated 28 May 2007 regarding regarding publishing of Sydney Opera House (SOH) images on the image library, iStockphoto. We understand that iStockphoto operates an image library where members publish their photos which are then licensed to third parties on a royalty-free basis. We welcome visitors to the Sydney Opera House precinct to photograph, film or video images for personal use only.

By publishing photos of SOH on a stock library, such as iStockphoto, this would be commercial use of the SOH brand (Commercial Use) and the use of our brand is something that we take very seriously. Where photographs of SOH are sold or licensed by you to third parties from iStockphoto for advertising, marketing purposes and other commercial purposes, that would also be making Commercial Use of the SOH brand.

Importance of SOH brand to Sydney Opera House
The SOH brand is a very powerful brand and is well recognised all around the world. This means that the brand is one of the most important assets of the Sydney Opera House Trust. The Sydney Opera House Trust manages the use of Sydney Opera House’s image and brand on behalf of the New South Wales Government. The Trust vigorously protects the commercial exploitation of its intellectual property and does not approve use of the SOH brand in commercial contexts where there is no association between the relevant business and SOH.

The Trust does this for two reasons - first - to protect the integrity of the brand and second, to protect its commercial value. As a non-profit arts organisation, the Trust is heavily reliant on sponsorships to support its operations and it offers brand association to sponsors of a certain value. In all cases however a sponsor is only permitted to link its product with the SOH brand in a manner that is approved by SOH and which aligns with SOH brand values.

We hope that you can appreciate that our image and exclusivity are our most valuable assets commercially, so it is important that we protect them for ourselves and our valued sponsors.

Commercial Use of SOH images
Where you do not have any association with SOH at all, the Commercial Use of SOH images by you may suggest that there is a connection or association between you and SOH, where in fact there may be none. We would also object to your licensing or selling SOH images to third parties as their Commercial Use of the images would suggest those third parties have an association with SOH, or have been authorised by SOH to use depictions of the Sydney Opera House in promoting them and/or their products or services - which may not be true. The Australian Trade Practices Act 1974 (Cth) prohibits conduct which is misleading or deceptive in this regard.

Intellectual property rights of Sydney Opera House
SOH owns copyright in a large number of images of SOH (or has negotiated permission to use those images from their owners). Some examples can be found on our image bank at http://www.sydneyoperahouse.com/sections/media_room/image_bank/?sm=5&ss=22. These images of SOH may be used by the media but not for advertising or other commercial uses.

SOH also maintains trade mark protection for a large number of trade marks including representations of SOH. Therefore, commercial use of certain images of SOH may infringe SOH's registered trade marks.

Reasons for removal of your image
We understand that some stock libraries remove infringing images posted by their members, often generating an email (often automated) which lists copyright infringement as the issue. Where your stock library removes SOH images and notifies its members of the reasons for their removal, we would prefer that those reasons refer to our intellectual property rights generally (as outlined above) - rather than just copyright infringement (which does not convey the range of intellectual property rights and other protection SOH relies on). However we understand that this is an issue for your stock library to amend. In this regard, we will contact your stock library to inform them of the above.

Thank you for your inquiry and we hope the above information answers your question.

Regards

CAROLINE ANG
CORPORATE COUNSEL
SYDNEY OPERA HOUSE
 

That would all be very well, but it first assumes that you can treat an image of a public view taken from property you do not own as a "brand" - I'm afraid that stretches the imagination too far. At least the ridiculous similar claims of the Eiffel Tower are only made in connection with its night-time light show.

Presumably you believe this is in some way rooted in trademark law? Please can you explain why you believe you have the right to treat a public view as your trademark?
 

Doesn't the City of Paris do exactly the same thing with the Eiffel Tower at night?
http://blog.fastcompany.com/archives/2005/02/02/eiffel_tower_repossessed.html
I was discussing this with a colleague in Brussels the other day and he told me that as a consequence Brussels is often used in films in lieu of Paris.
 

Stephen: Well, Paris only lays claim to the light show at night, claiming it is a performance and thus a protected work. SOH is claiming that the building itself is a trademark, which is a bit of a stretch whichever way you look at it. I'd love to hear why they believe they can trademark a building.
 

I've had a go looking at the legal issues under Australian law - http://www.freedomtodiffer.com/freedom_to_differ/2007/06/photographing_t.html

Note: This is not legal advice, just my own thoughts and ramblings ...
 

Simon, You are not the first to bump into the SOH "TradeMarked building" issue. Telstra, Australia's largest phone carrier have similar issues related to their Second Life presence which includes a model of the SOH. More challenging is the fact theat they are also being pursued for their representation of Uluru (Ayer's Rock) as discussed here www.theregister.co.uk/2007/05/25/uluru_kerfuffle/
It does seem ludicrous.

Perhaps we shouldn't be surprised,in a world where genes (http://news.nationalgeographic.com/news/2005/10/1013_051013_gene_patent.html), beliefs (http://www.salon.com/tech/feature/1999/07/22/scientology/index.html) and body postures (http://www.iht.com/articles/2007/05/07/opinion/edmehta.php) can be patented it's scarcely surprising that something as tangible and clearly 'creative' as the SOH would be actively protected.
 

Simon, I know I am a year late :) but I love your shot and thought you might be interested in this competition, http://www.sydneyoperahouse.com/about/houseinfocus.aspx
 

Thanks for the anonymous comment - I entered.