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MTCA responds to letter from MCO attorney 5-Nov-07 – Marina Towers Condominium Association appears to have backed away from its claim to rights under federal law, but insists its proposed ban on use of association name and image is valid under Illinois law. In a November 5 letter to copyright lawyer Thomas Rosenwein, MTCA attorney Ellis Levin said, “The Association has never contented [sic] that it has statutorily copyrighted the name Marina Towers or the image of the building under the Federal Copyright Act.” This appears to contradict a statement on September 7 by property manager David Gantt that “because of the architectural significance of our building, the condominium association holds a common law copyright on the use of the association name and building image.” Instead, Levin pointed to the Illinois Uniform Deceptive Trade Practices Act that prohibits business practices that cause “likelihood of confusion or of misunderstanding” as to the source, sponsorship, approval, certification, affiliation, connection, or association with another business. The Act makes unlawful “deceptive representations” and anyone who, in the course of a business, vocation, or occupation, “disparages the goods, services or business of another by false or misleading representation of fact.” Levin says the MTCA enforces its rights “where a business person has used the Association name, the image of the building or other Association documents…to create the impression whether deliberate or not that the web site or newsletter is officially endorsed by the Condominium Association.” Also, where the name or building image is used for commercial purposes, such as an advertisement or movie using the building image. However, to support this claim, Levin references a federal court case (Villa v. Brady Publishing) in which a graffiti artist, Hiram Villa, had his claim of copyright infringement dismissed because he failed to provide confirmation of the copyright registration. A book publisher had included a reproduction of one of Villa’s murals in a book entitled Tony Hawk’s Pro Skater 2 Official Strategy Guide. Villa also complained of deceptive business practices by the book publisher, but his case was dismissed. The court ruled that the federal Copyright Act preempts state law claims that are based on the same conduct. Levin says the MTCA “has a long history of enforcing its claim to the use of its name and the image of the building,” such as real estate brokers who have used the association name and image on web sites or newsletters, or movies that use the building image. Finally, Levin says the Uniform Deceptive Trade Practices Act has been interpreted by the courts to cover distinctive buildings such as Marina Towers. To support this, he references an Illinois case in which, he says, the owner of the former site of Edgewater Beach Hotel had the right to an injunction against another property owner seeking to use the name Edgewater Beach (see Edgewater Beach vs. Edgewater Beach above). Although he does not believe the proposed rule is in sync with the law, copyright lawyer Thomas D. Rosenwein says even under the most positive view of the MTCA’s position, the rule is unnecessary. “Even assuming that everything the lawyer says is true – the law is the way he says it is (even though it isn’t) – then the MTCA doesn’t need a rule to pursue its legal remedies. In other words, if the law is truly that MTCA can require permission before any photo of the property is used or its name is invoked, then the MTCA can just enforce its alleged rights whenever there is a violation.“ Says Rosenwein, “If the MTCA is going to pass a rule that reiterates what the law is or forbids, then why not a rule that bans murdering people in the units or cheating on ones’ income taxes?“
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