Q: New TM owner of NAME said stop all PRINTS of photos and publicity shots of that person. Raced from 20's to 40's. Do I?
Joe Petrali was a famous record-setting motorcycle racer. His best days were from the 1920's to 1940's. He was well photographed and was paid to race for Harley Dealerships and the Harley Factory. We received the family archive album of Harry Molenaar who was one of the better known Harley dealers and a racer himself. He had no children and the estate gifted the Molenaar's photo album to my husband. Petrali often raced on bikes owned by the Molenaar's. Petrali was often photographed by them. We cleaned the photos and have sold reprints for 5 years now. We have also added a few famous photos and publicity shots that are believed to be in public domain of Petrali. An individual just emailed us on eBay and said they NOW own the NAME "Joe Petrali," stop prints of anything we don't have the original and/or negative of. I'm not attempting to brand anything with his NAME. I'm selling prints of him. I think they are overreaching and the publicity shots are public domain. Any thoughts please?
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A:
While the ownership of a trademark in a name can grant rights to prevent others from using that name in commerce in a way that might cause confusion, it does not grant an absolute right over all uses of that name or over the likeness of the individual. Photos taken and owned by another party, especially those from the 1920's to 1940's, may very well be in the public domain or subject to specific copyrights that are unrelated to the name itself. If the photos are indeed in the public domain, or if you have the right to use them through some other means, the mere fact that someone owns a trademark on the name does not prevent their distribution.
Additionally, a trademark does not retroactively erase historical facts or events. However, to navigate this situation effectively and understand potential risks, you should seek advice from an attorney with experience in both trademark and copyright law. They can provide specific guidance on your rights and any potential limitations related to the images you are selling.
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