Poster boy for the revolution Featured

10:03am EDT July 22, 2002

Chuck Gentile had no weapon. He was armed only with a ruling from federal appeals court that dissolved the temporary restraining order which had barred him from selling his posters of the Rock and Roll Hall of Fame and Museum. In early April of this year, he entered the lion's den to proudly reclaim his confiscated goods.

The Lakewood-based freelance photographer went to the sleek receptionist's desk at Jones, Day, Reavis & Pogue, and asked to see Regan Fay, the attorney for the Rock Hall who had been holding the posters, which depict the iconographic I.M. Pei-designed building against a fiery sunset.

But the reception desk was as far as he got in the hushed confines of the blue-chip law firm, the nation's second largest. Instead of being ushered into the attorney's office, he was directed to an outdoor loading dock, where he found about 400 of his posters.

"They were on a skid," Gentile recalls. "Not even a have-a-nice-day card [was included]."

While a federal appeals court in Cincinnati ruled last January that federal judge George White had wrongly issued a TRO on the sale or distribution of the unlicensed posters, the case has hardly gone away, contrary to what most people believe.

Instead, legal discovery on both sides will continue until the end of the year, and all indications are that the dispute is headed toward a jury trial before Judge White sometime next year.

The two sides command significant legal firepower. Jones Day partner Regan Fay, an engineering graduate of the Massachusetts Institute of Technology, is a former patent examiner for the federal government as well as a seasoned litigator. He has been involved with the Rock Hall-which says it has spent $150,000 protecting its trademarks-since before it was built.

Gentile's lawyer, J. Michael Murray of the Cleveland defense firm of Berkman, Gordon, Murray & DeVan, is a past president of First Amendment Lawyers of America. He cut his teeth in contentious First Amendment cases as an understudy to Bernie Berkman, who before his death in 1985 spent many years defending such figures as the late porn distributor Reuben Sturman and Hustler Magazine publisher Larry Flynt. As one lawyer puts it, "[Murray] made a bundle on Sturman-he doesn't need the money from this case."

For its part, the Rock Hall has decided to press this fight at a significant cost in public, media and even legislative goodwill.

From the start, the central irony-that a museum dedicated to that most rebellious form of expression was going to court to stymie another young artist's free expression-was lost on no one. The Boston Globe editorialized that if Gentile fails to prevail, "a vital piece of entrepreneurial democracy goes dark."

The cantankerous Cleveland columnist Dick Feagler acidly noted that Judge White "sent Gentile's marvelous posters to death row"-temporarily, as it turned out. Wired magazine worked itself into high lather ("C'mon, a trademark on a public landmark? Get real!"), before inviting its readers to fire off pre-printed protest postcards to the Rock Hall.

Meanwhile, there could soon be renewed opposition on the political front. A populist downstate Ohio legislator, Republican Eugene Krebs, vows that he will renew his efforts to stymie the Rock Hall through changes in Ohio law if it presses on with its case against Gentile, which he assumed to be mooted by the appeals court decision until informed otherwise by SBN.

"If the Rock and Roll Hall of Fame were to turn around and literally spit in the face of Ohio taxpayers, which is what they'd be doing [by pressing ahead with the case], they are earning huge amounts of ill will," he says.

"There was not a consideration by the museum about dropping the case (after the appeals court ruling), because this really goes to the core of one of the museum's streams of revenue, and therefore of our very survival as a museum," says Tim Moore, Director of Communications for the Rock Hall. "...It's a much more important issue than publicity. It's a very critical issue that cuts to the very lifeblood of museum, it's very survival."

Krebs scoffs at the Rock Hall's argument that the case is not about freedom of expression but merely a routine case of trademark infringement.

"This guy Gentile goes to the Rock Hall and takes a picture of it, with a darn fine sunset behind it, made by God. Well, in the case of God, who do we send a royalty check to?"

It would be difficult to imagine a more unlikely eye to this legal hurricane than 39-year-old photographer Chuck Gentile. A streetwise shutterbug with a reputation for hustling for assignments, he seems particularly ill-suited to deal with national-accounts sharpies at the Rock Hall or seasoned lawyers for blue-chip firms.

When he attended one meeting to try to iron out the problem, a friend who accompanied him recalls how a Rock Hall marketing executive made his disdain apparent: "I shouldn't even be in this meeting, it's beneath me. I should be in meetings with Continental," the executive said, according to the friend, Jim O'Connor.

And yet Gentile defended himself for months before landing legal representation.

He spent nine years working as a staff photographer for American Greetings Corp. before striking out on his own as a freelance commercial photographer. He's been shooting and selling Cleveland scenes since at least 1987, which didn't remotely prepare him for the attention heaped upon him after the Rock Hall went to court to challenge his poster, which Gentile sold to retailers for $12.50.

Throughout his legal ordeal, now entering its third year, Gentile has ranged between outspoken defiance and a caution presumably born of good legal advice. Like other formerly obscure people unexpectedly swept up in media attention, Gentile has quickly developed an encyclopedic recall of who has said what about him, and in what medium. He can regale you with calls he's received from sympathetic law-school professors or from someone at Warner Brothers embroiled in a similar issue.

After the appeals panel ruled in his favor by removing the restraining order, he was momentarily ecstatic. He joked that he might one day sell the posters with an accompanying legend: Brought to you by the federal court-two out of three judges can't be wrong-a reference to the appeals court's 2-1 split decision.

But friends say the strain of the case has also taken a toll on his personal life. Gentile married not long after becoming embroiled with the Rock Hall, but the marriage has since ended.

While he said earlier this year that he would refrain from antagonizing the Rock Hall and its attorneys by selling any posters while the case is still active, at least one Cleveland gallery owner, Bancroft Henderson of Bancroft Gallery in the Old Arcade, says he now has the poster on sale. (When told of this development by SBN, Gentile's attorney sounded less than pleased.) Henderson thinks he's only one of many dealers who now has the print available for sale.

For the first several months after being slapped with the Rock Hall's complaint in April 1996, Gentile was largely on his own, though he apparently received advice and some legal support from the now-defunct American Society of Media Photog-raphers. And when he went to a meeting with officials of the Rock Hall in May 1996, he took along the aforementioned friend for moral support.

But when hauled into federal court he went entirely alone. In an initial hearing before Judge White, Gentile represented himself. On the other side was Jones Day's Fay, who likened Gentile's unauthorized poster to a brazen trademark infringement.

"It's a little bit like going into a store, getting a bottle of Coke, taking a picture, putting the Coke underneath and claiming you have First Amend-ment rights," Fay said, according to a transcript of the hearing on file at the court.

Without benefit of legal counsel, Gentile nevertheless defended his position aggressively, according to that same transcript. After pointing to certain portions of U.S. copyright law, he said: "Congress clearly saw fit to give artists rights of this nature, and we have been doing it since there was film and cameras, and to me this doesn't make any sense at all."

Besides, he contended, he sent a letter to the Rock Hall, offering to share royalties. He got only a letter threatening litigation if he didn't cease and desist.

He went on to note that since the opening of the building, the market has been "flooded" with unlicensed photographs and other representations of the Rock Hall, which he ticked off in such quick succession-presenting samples of some as evidence-that it appeared to agitate both the judge and the plaintiff's counsel.

"If you were a lawyer, he would object," Judge White told Gentile. Added Regan Fay: "We are not here at trial, yet, Judge."

From a legal standpoint, the case can easily bog down in arcane readings of federal trademark law, at least if you slog your way through the Rock Hall's court papers. In 1990, Congress extended copyright protection to significant architectural structures, and a host of companies with distinctive designs-from fast-food emporiums such as KFC and McDonald's to Transamerica and its pyramid-shaped headquarters in San Francisco-flocked to register them for protection.

But does that law merely bar others from building copycat structures, as Gentile's side argues, or does it also bar unauthorized use of the likeness through the sale of such merchandise as photographic posters? While the Rock Hall wants to paint this case as routine, others disagree.

As the legal publication Intellectual Property Strategist put it: "This may be the first decision of its kind in which the image of a building may be subject to trademark protection. Although trademarks have been granted before on building designs, the protection typically precluded someone else from making a building using the same shape."

Gentile's attorney, eager to argue the case on First Amendment principals, contends that Gentile's freedom of expression trumps such factors as the Rock Hall's merchandising program. "The court failed to consider the First Amendment implications of issuing an injunction censoring artistic expression," Murray wrote in a brief. "Instead, it treated Gentile's photographs as cans of spinach..."

In a more recent interview, he add-ed: "Usually, in the First Amendment cases I've been involved in, it's the government that's trying to suppress speech or expression. Here, ironically, it's a museum devoted to artistic expression. But it doesn't seem to be [so devoted] in the case of a photographer named Chuck Gentile."

To bolster its case and divert the focus from such potentially hazardous legal ground, the Rock Hall seems to have taken a strategy that gets more personal. To move away from the issue of artistic expression, it maintains in court papers that Gentile's posters don't qualify as art but are merely cheap consumer goods.

"No matter how defendants try to embellish their poster as 'a piece of artistic expression presumably purchased for display,' both posters involved are relatively inexpensive consumer merchandise. At the preliminary injunction hearing, defendants did not dispute the fact that there is little customer discrimination in the purchase of such relatively inexpensive products," reads one filing.

Thus, the Rock Hall argues, the public will confuse Gentile's poster with properly licensed posters, potentially damaging museum operating revenues.

Or, as others suspect, has Gentile's work been singled out precisely be-cause it is so artistically attractive?

"Because it's so good, it may outsell everything else," says Bill Fowls, the head of the photography department at American Greetings. The Bancroft Gallery's Bancroft Henderson, who sells Gentile's framed posters for $85, similarly asserts its distinctiveness. "I remember when it first came out-it seemed to us to be by far the best photograph of the Rock Hall."

If clashing interpretations of trademark law and the First Amendment weren't complication enough, the Rock Hall's case against Gentile is rendered even murkier by a tangled web of Cleveland politics and economic development.

In the 1980s, Cleveland was a town driven to put its embarrassing past behind it, and rise like the phoenix from the ashes of default, burning rivers and racial strife. And when the possibility arose of building a museum dedicated to rock-n-roll, it quickly be-came the centerpiece project of downtown redevelopment efforts. All the central players understood that it was the only project on Cleveland's drawing board with a potentially international appeal to help make Cleveland a serious convention destination. "It was the focal point," says Dick Anter, director of downtown development for the Growth Association from 1987 to 1990. "It was the international piece tying in with the orchestra. It gave us the one solid link to really promote Cleveland internationally."

Thus, the entire downtown establishment and its political support group rallied around the cause. Jones Day agreed to provide $2 million of pro bono legal services, lending the expertise of its attorneys in corporate, real estate, intellectual property and bond work. The state of Ohio and its governor, the former mayor of Cleveland, stepped in with $9 million in loan guarantees. And Cleveland-based McDonald & Co. chipped in by selling more than $50 million in tax-exempt revenue bonds, guaranteed by state and county governments. And when the funding still came up short, Mayor Michael White and Cuyahoga County Commissioner Tim Hagan paved the way for the County Port Authority, the only public bonding authority that hadn't exhausted its funding cap, to help.

And yet, eager to dispel the general notion that such funding means it is a public building-and thus available to be photographed by whomever wishes to-the Rock Hall's defenders have engaged in some legal hair-splitting that would do Bill Clinton proud.

By this reasoning, the Rock Hall isn't a public building because the fi-nancial assistance was derived not from general tax revenues but rather through private investment secured through publicly issued bonds. Regan Fay concedes that this has been a difficult distinction to sell.

"That's something we've been able to educate the judges on, but not the public," he says with an air of resignation.

Even the federal judge who first issued a TRO on the posters, George White, may not be immune to the urge to protect the Rock Hall's income stream. A former Cleveland City Coun-cilman who won his lifetime appointment only after surviving the opposition of former Sen. Howard Metzenbaum, White has deep ties to the local business and political establishment.

A visit to his chambers underscores the impression of a judge who decides issues not so much in cloistered seclusion but with an eye toward realpolitik. Where most judges, federal and otherwise, have stacks of legal publications piled in their waiting rooms, his waiting room is dominated by copies of the glossy monthly Vanity Fair.

It was into this tangled mix of power politics that a little-known commercial photographer unknowingly trampled with his tripod and light meter. Some are mystified over the Rock Hall's insistence in pressing on with this unpopular case. While one would ordinarily think that a museum would do everything in its power to escape near-universal opprobrium from the public that supports it, the Rock Hall seems immune to criticism. Why?

The answer may lay in the unusual patchwork of funding that went into building the museum, aggravated by the recent disappointing shortfall of visitors to the museum. Because those visitor receipts have lagged, revenues from such "ancillary" activities as the sale of merchandise have become anything but ancillary to paying down the debt from building the complex. And they're considerable: sales of licensed merchandise from the museum store alone were expected to hit perhaps $5 million in 1996, and as much as $20 million for all outlets.

Still, there's a risk for Rock Hall supporters if this case continues along its current path, especially when waged by an attorney as well-schooled in such litigation as Murray. As plenty of litigants have learned to their dismay, the discovery process can lead to opening doors which some would prefer be left closed. In early discovery proceedings, Murray shows every evidence of aggressively investigating such things as McDonald & Co.'s precise role in selling the bonds, by subpoenaing Managing Director Paul Komlosi.

"This goes way beyond the Rock Hall," Anter says of the delicate public-private agreements whose messy details could prove embarrassing if extracted through legal discovery.

The Gateway sports complex, for instance, was structured in similar fashion. Though it benefited from giant infusions of public funding through passage of a county "sin" tax, the sports complex remained under the ownership and management of a private corporation. And thus it could legally prevent Native American demonstrators from demonstrating against the Chief Wahoo logo.

The Rock Hall has been equally aggressive in pre-trial proceedings. In October, it was due to take depositions from principals in the companies that laid out and printed Gentile's poster, even the Bedford Heights company which added some finish, Northern Ohio Finishing.

"All I was doing on that poster was making it shiny," says owner Patrick Holler.

Both sides, no doubt, would like to hear from the security guard, "Jim," who Gentile maintains gave him verbal permission to take his photos.

What, then, is to become of The Rock & Roll Hall of Fame and Museum, Inc. vs. Gentile Productions?

To no one's surprise, the court recently found the case to be a poor candidate for settlement through alternative dispute resolution. To the contrary, you can almost hear the sound of heavy artillery being hauled into position as you read through the court filings and their mushrooming lists of central figures and innocent bystanders about to be deposed.

As for the appeals court's overturning of the temporary restraining order, one legal authority notes that while it has no legally binding effect on a trial over the merits, as a practical matter it ought to have some influence with Judge White.

"Usually, if your appeals court overrules you, it's gotta weigh on how you view the merits," says Jonathan Entin, a professor of constitutional law at Case Western Reserve University College of Law and a lawyer with experience in federal appellate practice. Perhaps recognizing that reality, Regan Fay is looking beyond the trial court and even the appeals court.

Instead, he talks about "laying the groundwork" for proving to later courts that the appeals court erred in overturning the TRO, an unambiguous sign that the Rock Hall intends to take its appeal all the way to the U.S. Supreme Court, if necessary.

"I very clearly expected it to go all the way up to the Supreme Court all along," says Victor Perlman, who served as national general counsel to the defunct photographers' group. "The issues are too important to stop at the intermediate level."

The powerhouse Jones Day firm, meanwhile, has also tried to throw its weight around the State Legislature, by one account. Representative Krebs says he got a call from someone at the firm, threatening retaliation if he continued to press his bill on this matter.

"I got a very interesting call from a guy at Jones Day-heavy pressure," he says. What did he say? "We want you to cease and desist, that kind of thing. I just laughed at it...It really was [like] 'we're more powerful than you.'"

If intended as a threat, it backfired. The call has only led Krebs to plant his feet more firmly on the issue. "If they win in the courts, fine. We'll change the state Constitution accordingly. So we'll still beat them."

And what of the photographer who touched off the continuing legal showdown with his decision to plant a tripod on a windswept sidewalk just off Lake Erie? Chuck Gentile has noticeably ratcheted down the volume on his public comments recently, on the advice of counsel. But as his case was heading for appeal on the temporary restraining order last year, he couldn't resist gloating a bit about how the law of unintended consequences had rebounded to his benefit.

"Everywhere I go, they've heard of me. They actually did me a favor," he said at the time. "They've made me international overnight."