Tarnishing the world's largest and most liquid exchange.
May 26, 2011 11:27 AM Subscribe

Back on November 23rd, TPMMuckraker ran an article titled “‘Eager Beaver’ FBI Agent’s Attempt To Flip Witness Exposed Feds’ Big Insider Trading Case.” That article (about a prematurely blown, ongoing investigation of allegations of insider trading centered on Goldman Sachs) was illustrated with a photograph of the New York Stock Exchange. Yesterday, TPM Media LLC (dba TPMMuckraker) received a cease and desist letter regarding that photo.

The problem isn't ownership or use of the photo itself, which isn't in dispute, but what the photo depicts. Apparently, the very trading floor of the New York Stock Exchange is now considered a trademark of the NYSE brand—and unauthorized use of such images tarnishes that brand.

posted by kipmanley (49 comments total) 2 users marked this as a favorite

More than it's already been tarnished by the behavior of its members?! There's some serious self-delusion going on there!
posted by OneMonkeysUncle at 11:33 AM on May 26, 2011 [3 favorites]

This is absurd.
posted by thsmchnekllsfascists at 11:41 AM on May 26, 2011 [1 favorite]

Maybe they just don't want anybody to see them while wearing those hideous trading jackets.
posted by Threeway Handshake at 11:43 AM on May 26, 2011 [3 favorites]

Oh good Lord I had no idea you could get them in camo.
posted by kipmanley at 11:44 AM on May 26, 2011

TPM can just replace the photo with this picture. Problem solved.
posted by Faint of Butt at 11:49 AM on May 26, 2011 [30 favorites]

The problem isn't ownership or use of the photo itself, which isn't in dispute, but what the photo depicts.

Scare tactics.
posted by zarq at 11:51 AM on May 26, 2011 [2 favorites]

Didn't Ford try to do something similar with their cars several years ago? Where they tried to claim control on any photos taken of their cars by third parties, saying that the visual design of the cars was copyrighted.
posted by Thorzdad at 11:53 AM on May 26, 2011

Nonsense. I hope they fight it hard.

Or just publish the salaries of NYSE executives, every day for a year.
posted by fourcheesemac at 11:53 AM on May 26, 2011 [1 favorite]

This one's still OK, right?
posted by bonecrusher at 11:56 AM on May 26, 2011 [2 favorites]

We do some business with NYSE Group and it always annoys me because really? You mailed me a five-page document for a measly $500 invoice for trading fees? Did you need to use all that paper?

I don't have a very important job.
posted by shakespeherian at 11:58 AM on May 26, 2011

This is absurd.

Not particularly. It's not really a big deal at all. NYSE, Inc. / NYSE Euronet is a for-profit corporation, not a government agency. As such, they have the right to exploit their own trademarks and to attempt to prevent their exploitation by others. This is not even remotely controversial.

Would you all be so OUTRAGED! if it were, say, Major League Baseball objecting to the use of a photo of abatter at the plate in Yankee Stadium to illustrate a story about steroid use in football? I doubt it, but that would be basically the same thing.
posted by dersins at 11:59 AM on May 26, 2011 [2 favorites]

Paging Ms. Barbra Streisand. Please pick up the bright yellow phone on the floor of the NYSE trading pit.

Paging Ms. Barbra Streisand ...
posted by ericb at 12:00 PM on May 26, 2011 [1 favorite]

I'm kinda outraged over your use of the blink tag. ;)
posted by zarq at 12:01 PM on May 26, 2011 [6 favorites]

Really?
posted by benito.strauss at 12:03 PM on May 26, 2011

THREE BIG BAGS OF TRASH
posted by boo_radley at 12:03 PM on May 26, 2011

There's an independent bookstore near my apartment that doesn't allow photography inside. Is this kind of like that?
posted by shakespeherian at 12:06 PM on May 26, 2011

I'm no trademark lawyer, but I believe that ownership of trademarks sometimes puts you in a catch-22 type position. If you don't protect or attempt protection of your trademark, even when protection seems rather silly, you risk tacitly waiving your rights to protection when there actually DOES exist a harmful instance of trademark infringement. Disclaimer: this could be a complete misstatement of federal trademark law.
posted by gagglezoomer at 12:07 PM on May 26, 2011

The picture in the "a photograph..." link looks like the CIC of the Galactica.
posted by Mister Moofoo at 12:14 PM on May 26, 2011

gagglezoomer, I think you are correct. That's one reason Disney goes and crushes granny's kinder care with badly painted Donald and Mickey on the walls.

You can pretty much safely bet your gonads that the corporate legal consultants also see a good tactic for creating billable work. They may not say it, but they for damn sure are billing it.
posted by Xoebe at 12:14 PM on May 26, 2011

Would you all be so OUTRAGED! if it were, say, Major League Baseball objecting to the use of a photo of abatter at the plate in Yankee Stadium to illustrate a story about steroid use in football?

I'm not OUTRAGED! (blink omitted), it's just silly. That's all.
posted by thsmchnekllsfascists at 12:17 PM on May 26, 2011 [1 favorite]

5 seconds work with Tineye = 500 billable hours by senior partner. Thank you internets!
posted by benzenedream at 12:18 PM on May 26, 2011 [1 favorite]

There are many many buildings in New York that do not allow photography, as near as I can tell is that these are the building that license images of the building and/or interior for postcards.
posted by Ad hominem at 12:19 PM on May 26, 2011

Sorry about the blink tag. Dersins' did have a rhetorical purpose. Mine was just a "I hate the blink tag" knee-jerk.

Deletion (of mine) please, mods?
posted by benito.strauss at 12:23 PM on May 26, 2011

The image that forms in my mind when I think "NYSE" is so thoroughly sullied with putrid filth that to reach a state of being merely "tarnished" would require quite a lot of cleaning up.
posted by Corvid at 12:28 PM on May 26, 2011

Would you all be so OUTRAGED! if it were, say, Major League Baseball objecting to the use of a photo of abatter at the plate in Yankee Stadium to illustrate a story about steroid use in football? I doubt it, but that would be basically the same thing.

Yes. Yes I would. It's one thing to argue that you own the copyright in the photo and won't authorize others to use it without your permission. That's not what's happening here. They claim that they own the entire concept of traders standing around on the trading floor, and that concept can't be exploited without their blessing. There is no law that gives someone intellectual property rights over every image captured on their premises.

The New York Stock Exchange is free to object here and Major League Baseball is free to object in your example. They might even go so far as to argue that using the photo in this way constitutes defamation because it implies that the exchange was involved in criminal conduct. I don't know enough about the facts here to know whether that is remotely credible, but that's at least a reasonable thing to complain about.

What is not reasonable is to claim that the New York Stock Exchange gets to control the use of every single one of these images.
posted by zachlipton at 12:31 PM on May 26, 2011 [8 favorites]

Not surprising. The British insurance market Lloyds of London (NOT a single insurance company as is frequently mistaken) had tight controls over images of its trading floor for years and years. There is a large bell in the center of the floor that was traditionally rung when a ship insured by Lloyds was lost at sea (a tradition going back centuries) and the whole floor was rarely seen by anybody outside the business.

My father was an underwriter for an insurance company that did re-insurance with Lloyds and was gifted a large print of a painting of the trading floor that we kept in my hallway growing up. Years later, when I was part of a radio show stunt that took several of us from the show to London, I took a side trip to Lloyds, through arrangements he made.

When the PR representative saw my cassette recorder, he briefly freaked out, since any kind of recording device was forbidden on the trading floor as part of their 'supervision' of any visitors from the media. But when I interviewed him (awkwardly tying in the history of the institution with my show's wacky premise for going to London), we were on a mezzanine overlooking the floor and could clearly hear the activity below. I joked about ringing the bell for our radio audience and he cringed, but he did tell me off-mike that I probably had the first recording of the Lloyds floor for broadcast anywhere (it was 1977). Still, when the show took all the tapes recorded in London back to L.A. for broadcast (no, we didn't do anything Live in London), my whole segment was cut down to a half-minute of background noise and a brief explanation of where I was.
posted by oneswellfoop at 12:36 PM on May 26, 2011 [1 favorite]

There are many many buildings in New York that do not allow photography, as near as I can tell is that these are the building that license images of the building and/or interior for postcards.

This is a kind of weird area of law, but the simple answer, as I understand it, is that Freedom of panorama in the US allows anyone to freely photograph buildings from public places and to own all the rights to those images. However, that freedom does not extend to artwork associated with buildings (sculptures, statues, murals etc...) or to closeups of individual architectural details (gargoyles, pillars, etc...) of buildings constructed after December 1990. Other exceptions may apply.

However, most buildings don't know this or don't care, and even more building security guards don't know this or don't care. They can't stop you from photographing their building from a public place. It's probably easier for everyone if you leave for a while and don't get into an argument you can't win, but just come back a bit later and snap away.

The handy reference card The Photographer's Right is useful for these sorts of questions. It's by the author of Legal Handbook for Photographers: The Rights and Liabilities of Making Images.
posted by zachlipton at 12:44 PM on May 26, 2011 [8 favorites]

What if the photo was taken as a parody? Would that exclude it?
posted by ZenMasterThis at 12:48 PM on May 26, 2011

Dersins is correct. Sure, this C&D letter is based on a rather shaky legal theory and the mockery and loss of good will that would result from litigating the issue would outweigh the benefit.

But the underlying point - that using a picture of the NYSE to illustrate a story about insider trading unfairly implies that the exchange is somehow involved or at fault - is entirely correct. The NYSE would have done better to simply send a request instead of a demand, and to point out that far from being involved in any insider trading, the NYSE actually suffers when people exploit inside information to manipulate the market. TPM's use of the image is not (IMO) infringing, but it is somewhat misleading, albeit unintentionally.
posted by anigbrowl at 12:49 PM on May 26, 2011

The Association of Alternative Newsweeklies points out that:

In a news use of a trademark, it should be a necessary part of the news story, where you need the mark to identify the company and deliver your message.

What if the photo was taken as a parody? Would that exclude it?

That's a meaningless concept. Parody is a defense to an allegation of illegal publication.
posted by anigbrowl at 12:54 PM on May 26, 2011

I'm a lot more upset about the investigation getting temporarily derailed than I am about the C&D letter, by the way - these things take long enough without the addition of expensive delays.
posted by anigbrowl at 1:00 PM on May 26, 2011 [1 favorite]

As an illustration of why this is a bad idea journalistically, rather than legally, imagine that it were a person instead of a trademark. Say in illustrating the Dominique Strauss-Kahn story they used a picture of Michel Doublet and wrote in the caption "French Politician". He'd be legitimately unhappy with that.
posted by Jahaza at 1:00 PM on May 26, 2011

Since the NYSE isn't part of the story as written, it seems legit to me that they complained about being used to illustrate it. If TPM has something to say about the NYSE, they could use the illustration. Just the fact that stocks were involved in the story doesn't mean that it automatically involves the NYSE.

Yes. They could have complained. That's very different than what they did here, which is to claim that they actually own the rights the picture. That's the absurd part. It's even more funny that they sent this letter just now in response to a story that was published back in November.

Realistically though, TPM used a photo of stock trading to illustrate a story about insider trading. That's not particularly unreasonable. Insider trading doesn't really look like anything (except a big photo of Martha Stewart?), so illustrating the overarching concept seems like a decent idea. The actual photo in question just looks like any stock or commodities exchange; the American flag patch is the only key clue in the picture that it's specifically the New York Stock Exchange, and you'd have to know your exchanges pretty well to know it's NYSE. Of course the caption does identify the New York Stock Exchange, but isn't is standard journalistic practice to identify the locations of images? The rather small photo doesn't identify the NYSE in any real way.

I agree that the use of the photo is somewhat bad form as a matter of journalistic ethics. I've seen far worse, but it's not the greatest decision in the world. But none of us would be talking about this at all if the NYSE simply dropped a quick email to TPM saying "hey, we weren't involved in this, mind pulling the caption?"
posted by zachlipton at 1:08 PM on May 26, 2011 [1 favorite]

Wait... people have browsers which actually still support the blink tag? Wow.
posted by hippybear at 1:22 PM on May 26, 2011

Imagining trademarks and corporations are people causes no end of trouble.
posted by vibrotronica at 1:45 PM on May 26, 2011

What if the photo was taken as a parody? Would that exclude it?

That's a meaningless concept. Parody is a defense to an allegation of illegal publication.

Sorry, anigbrowl, I should have added the [/ sarcastic] tag.
posted by ZenMasterThis at 1:48 PM on May 26, 2011

Not particularly. It's not really a big deal at all.

I disagree.

NYSE, Inc. / NYSE Euronet is a for-profit corporation, not a government agency.

They could be the Roman senate for all I care. This is a perverse application of trademark law.

Now it is true, I am not a lawyer, but if it turns out that the law does say a company can use an incidental image that was taken on company property and used to illustrate a story, then given my understanding of what the hell a trademark is supposed to be (which is based on a parsing of the word "trademark"), that is a bad law.

Other people who are not lawyers would generally agree with me, I expect. It's possible that the legal object has meandered a bit from being strictly about marks of trade. If so, then I think people should bloody well find a new term for it. Might I suggest "Culture Screwing Legal Landmine."

As such, they have the right to exploit their own trademarks and to attempt to prevent their exploitation by others. This is not even remotely controversial.

This is not even remotely not remotely controversial.
posted by JHarris at 1:50 PM on May 26, 2011

(Er, if the law says that a company can use the law to prevent incidental images from being used to illustrate a story. Dammit, I dropped words from the middle of a sentence again.)
posted by JHarris at 1:52 PM on May 26, 2011

Who can I sue to get my BLINK tag back? :(
posted by Theta States at 1:52 PM on May 26, 2011

hippybear: "Wait... people have browsers which actually still support the blink tag? Wow."

Yes. Firefox 4.0. The latest version.
posted by zarq at 1:53 PM on May 26, 2011

Yes. Firefox 4.0. The latest version.

Yet another reason not to run Firefox very often, then! :D ;)
posted by hippybear at 1:55 PM on May 26, 2011

Would you all be so OUTRAGED! if it were, say, Major League Baseball objecting to the use of a photo of abatter at the plate in Yankee Stadium to illustrate a story about steroid use in football? I doubt it, but that would be basically the same thing.

See, that's not personal enough... Let me fix that for you.

Would you all be so OUTRAGED! if it were, say, a picture of you standing on a public street being used to illustrate a story about pedophiles? Yes, you would be OUTRAGED! except you would be on the side of the NYSE.

NYSE is unrelated to the story (ok, maybe tangentially related, but still). They have a right to protect their image from defamation. Just as you would have the right to object to a news paper using a picture of you to illustrate a story about a heinous criminal act.
posted by j03 at 2:15 PM on May 26, 2011

hippybear writes "Wait... people have browsers which actually still support the blink tag? Wow."

Why not, it's cortex approved.
posted by Mitheral at 3:41 PM on May 26, 2011

j03,

The NYSE is not a person, nevermind also not a private figure. The article does not say the NYSE committed a crime. The alleged crime involved an activity that occurs at the NYSE, by an institution that does business at the NYSE, and the crime is not pedophilia.

Otherwise, the analogy applies.
posted by zippy at 5:14 PM on May 26, 2011 [1 favorite]

Would you all be so OUTRAGED! if it were, say, a small picture taken at your workplace that included a somewhat unclear view of you, taken from the side and generally depicting a generic employee, being used to illustrate a story about a robbery that occurred there?

That starts to get a bit closer to what happened here. And the people complaining aren't the traders pictured, but simply the company that operates the facility. I don't think the photo was great journalism, but it's really not the end of the world and not worthy of a great big freakout seven months after the fact. A polite request to pull or clarify the caption would certainly have sufficed.

Similarly, when the paper runs a photo of the mayor at a press conference following a shooting, no one thinks the paper is implying that the mayor was the shooter.
posted by zachlipton at 5:34 PM on May 26, 2011 [1 favorite]

j03 wrote: if it were, say, a picture of you standing on a public street being used to illustrate a story about pedophiles? Yes, you would be OUTRAGED!

Yes, I'd be outraged. I'd probably be able to make a successful case for defamation. But I wouldn't be able to use trademark law to prevent publication of the image.
posted by Joe in Australia at 6:39 PM on May 26, 2011 [3 favorites]

« Older Last night, my brother, the real football fan, reg... | When you come up behind a grou... Newer »

This thread has been archived and is closed to new comments

Tarnishing the world's largest and most liquid exchange. May 26, 2011 11:27 AM Subscribe

Tarnishing the world's largest and most liquid exchange.
May 26, 2011 11:27 AM Subscribe