The question is always what the trademark is marking.
For example, ALL buildings after 1990 are COPYrighted, in that you can't build something that looks just like them.
Most building TRADEMARK marks only apply to the commercial re-use of those images. There's no sense in which a public building, including the Empire State Building, can prevent you from using them as a background element. That's explicitly covered under Fair Use.
And yes, there is quite a bit of case law related to using trademarked buildings, the most famous of which involved the Rock and Roll Hall of Fame, and significantly narrowed the scope of previous landmark/trademark law. This is nicely covered in the article
When A Landmark Cannot Serve As A Trademark.
That said, the list of trademarked buildings is loooong. Pretty much any building you can name. In New York, that includes the Chrysler Building, Flatiron Building, the Apple Store, etc. Remarkably, I can't find any reference to The Garden being trademarked, and the Stock Exchange only holds a trademark to depictions of the floor.
Seattle's Space Needle, St. Louis's arch, San Francisco's TriMerica building, etc. All trademarked. (Good tip: if it has a company name in it, ie, the Empire State Insurance Company or Chrysler or TriMerica) you can be POSITIVE it's trademarked.)
Do note that many stock photo and video agencies simply don't accept submissions that include these buildings at any view much closer than a skyline. But that relates to depictions OF those buildings, NOT to depictions of scenes with those buildings in the background.
There are really very few scenarios in which you're not okey-dokey...but any advice you get here is worth exactly what you paid for it. :-)
And to be on the safe side, I'd avoid the Apple store altogether. LOL
Tim Wilson
Vice President, Editor-in-Chief
Creative COW Magazine
Twitter: timdoubleyou
The typos here are most likely because I'm, a) typing this on my phone; and b) an idiot.
