The Rock and Roll Hall of Fame and Museum, Inc. has been awarded a preliminary injunction by the Federal District Court for the Northern District of Ohio against Gentile Products, et al. to prevent production and sale of a poster featuring a photograph of the Rock and Roll Museum set against Lake Erie in the red glow of sunset. Defendants had closely duplicated an authorized photo of the Rock and Roll Museum being sold in the museum's shop. Plaintiff argued that its rights for its distinctively shaped building should be protected against unauthorized uses by other parties. The defendants argued that their rights of free speech would be violated if they were prohibited from making and selling a poster of the popular building and that, in any event, the doctrine of trademark fair use should trump any property rights held by the plaintiff.
Regarding the defense of free speech, the trial court held that the right does not cover false speech; that the defendant, in selling its poster, created the misleading impression that the poster was somehow connected or affiliated with the Rock and Roll Museum, in a situation where the configuration of the building functioned as a trademark, i.e., to indicate the source and origin of goods and services of plaintiff. As to fair use, the court held that a use cannot be deemed "fair" when defendants' product creates a likelihood of confusion, as it did in this case. It further ruled that where an image of plaintiff's distinctively shaped building was the "triggering mechanism" for the sale of defendants' poster, fair use did not apply in any case.
Defendants have appealed the ruling to the Sixth Circuit Court of Appeals. The case has attracted considerable attention and several amici briefs have been filed. Dykema Gossett has filed an amicus brief supporting plaintiffs-appellees, on behalf of one of its clients. The appellate ruling is expected early this year.