Copyrights an indepth look [Archive] - Canon Digital Photography Forums

IndyJeff

10th of February 2004 (Tue), 09:15

This thread is from a thought provoked by the stock agency thread.

A few weeks ago I was in the office of the director of photography for the Indy Racing League. We were talking about licensing and uses of photos. Ron was telling me of a situation they were currently working on. Seems someone wanted to use a shot of an Indy car in an ad. Now what the league was doing in order to make this a useable photo was having to get a release from everyone involved in the actual photo. The photo was from their library which means the copyright was owned by the Indianapolis Motor Speedway and the IRL, no problem there. Next was the driver and car owner. Even tho they sign a release to use their image, a seperate release was needed for it to be used in this ad. Now the hard part, each sponsor who's name or logo was in the image had to be released. The sponsor who wanted to use the shot didn't need to sign one but a couple of the others were holding up the process by wanting a licensing fee for use of their company name in the photo.

That is why you will see stock companies don't like to see any brand names in a photo. Takeapic.com even states the following

Copyright

Takeapic makes every effort to conform to the International Copyright Act
Copyright is very important to our community and should be adhered to as closely as possible. As a photographer uploading your images to Takeapic.com, you will find that our administrators do not accept files that contain:

a) logos, trademarks, company names, product names, product brands or trademarked and patented designs.
b) paintings, sculptures, any object in a museum, any object in an art gallery, including public sculpture, some architecture, advertisements, other photography (a photo of a photo)
c) most modern toys, many brand name watches, brand name computers and other licensed products.
d) modern maps, documents where names are mentioned, computer screens (interface and icons are copyrighted).

Keep in mind that when you take a photo what all is in the frame. Is there any signage, logos etc. It may make a great shot absolutley worthless to sell.
In the case like with the IRL a stock comapny may not go to such an extent to get a release and therefore would most likely reject the image all together.

Other examples of images which may not be sold without a license agreement and releases being signed, even if not for advertising purposes anything from....
1. NCAA
2. NFL
3. MLB
4. NBA
5. WWE
6. NHL
7. Olympic events
Of course any of the above may be sold without question for editorial use. In some cases images may only be sold then to the editorial publication for which the photographer was issued a credential to shoot a particluar event for. I couldn't for example get credentialed to shoot the Indianapolis Colts (NFL) for AP and if AP didn't want to use my a certain image I couldn't then turn around and try to sell it to Rueters.

Hope this gives you all something to think about and maybe even will spark some questions/discussions of other situations.

Roger_Cavanagh

10th of February 2004 (Tue), 12:51

Certainly, makes me glad I'm not trying to make money at this game. :)

Interesting post, even tho' I am an amateur.

Regards,

Motorsports Photo

10th of February 2004 (Tue), 18:32

Yep, it can be difficult at the top of the food chain. They could have just licensed the pic and claimed everyone had already signed their life away and probably got away with it. It is good to hear SOMEONE wants to play by the book. I tried to pitch an EOS ad, but their advertising manager replied with the same rhetoric... yoiu have to get releases from EVERYBODY. That spoiled that surce of revenue. Anyway you guys can have a look

http://web.raex.com/~speedy/eos-1.jpg

And then there is the actual legal aspects od defending a copyright. Your only real defense is look big and hope the other guy gets scared. Since legal fees typically aren't awarded in copyright cases you better hope that settlement was a BIG one!

-Pete

IndyJeff

11th of February 2004 (Wed), 00:39

Pete same thing with the IRL, even tho the drivers signed a relase of their images it doesn't cover commercial use. Good idea for an ad too.

Is there still a guy running in WERA named Shane from Mt. Carmel, ILL? And how about the girl from Ohio, Mary and her husband/boyfriend? I have often wondered how many of the people who were running a couple of years ago are still in that series.

Motorsports Photo

11th of February 2004 (Wed), 09:38

Is there still a guy running in WERA named Shane from Mt. Carmel, ILL? And how about the girl from Ohio, Mary and her husband/boyfriend? I have often wondered how many of the people who were running a couple of years ago are still in that series.

Too many Shanes these days. If you know a bike number I would remember him.

Mary and Ed are still active racers. I made the mistake of assuming they were married too. Unless they secretly tied the knot, they are still a race couple.

-Pete

Belmondo

11th of February 2004 (Wed), 10:03

I digress slightly, but the notion of owning your own image is widespread, and not just limited to athletic teams/organizations.

I have a fairly extensive library of railroad photographs, including many of the Union Pacific Railroad. I recently contacted a company that produces a wide variety of railroad calendars, and was told that the UP does not allow them to sell a calendar featuring pictures of their rolling stock without prior written authorization, and that such authorization is simply not granted. As it develops, UP actually sells their own calendar and this is evidently their way of eliminating competition.

This is an absurd application of the law. Railroads are an everyday fact of life. We see them everyday, and in some parts of the country are more plentiful than trees. We see them, smell them, hear them, wait for them at grade crossings, and generally tolerate their intrusion into our everyday lives. But if you take a picture of them, don’t expect to be able to do anything with it other than to put it in your photo album and admire it from time to time. If it’s really good, maybe you can hang it on the wall (but not where it can be seen through a window.

To illustrate just how ridiculous these policies can get, think of an innocuous model train---a scale model locomotive for example. Union Pacific now requires a license to produce a model of a UP locomotive. I haven’t heard of them charging money for this yet, but based on their attempt to monopolize the UP calendar business, I’d say it’s only a matter of time.

Probably some Harvard MBA was named employee of the month for dreaming up this bit of stupidity, but to me, it does symbolize perhaps the clearest and ugliest illustration of corporate greed that I’ve seen in some time.

theoldmoose

11th of February 2004 (Wed), 10:35

Yeah, what are the corporate types gonna' do, when we all get perfect memory installed in our brains, to record an entire lifetime's full of experiences. It will certainly challenge those 'no recorders or cameras allowed' venues, that's for sure...

Motorsports Photo

11th of February 2004 (Wed), 10:44

but to me, it does symbolize perhaps the clearest and ugliest illustration of corporate greed that I’ve seen in some time.

You're right! and there are LOTS more examples of this corporate greed all around us. The worst part is they get away with it.

STuff like Enron is the start of a house of cards about to collapse.

POWER TO THE PEOPLE!

IndyJeff

11th of February 2004 (Wed), 12:39

Pete I think Shane rode # 67 if I remember correctly.

As was told to me about corp greed, there are too many lawyers involved. When I was talking with the Dir. of Photo at IMS the subject of guys selling pics on the side came up. I admitted I have sold a few here and there and there is not one guy out there with a camera that doesn't. He said he knows that and policing it is just impossible. What they look out for is someone who is trying to make a business out of selling pics from IMS or the IRL. Now it is not impossible to do this but, first you have to be licensed and that is $5000.00 USD upfront. How many pics would you have to sell just to break even on a deal like that?
As for the railroad, seems to me like any shot of one of their trains would be free publicity. So they don't get their 5 cents per calander. How many would actually sell? Now if they are doing their own calanders I can see how they would want to limit the competition. Regardless if they are part of our everyday lives they still have a right to control the images of their property. Once a group loses the right to control that image and it's uses, then every group is subject to losing the same protection.
Imagine if you were at a park with your 6 year old son. Someguy snaps a pic and then while on vacation you see an ad on the side of a city bus with a caption...."Pedofiles can be your next door neighbor. Protect the children" How quick would you be to call an attorney? Nothing in the ad said you were a pedofile, directly. In fact it never even referenced you directly.
Trouble is everyone and his brother seems to afraid that someone else is going to make a few bucks off of them without them getting their cut. I see it from their point too, in a way, you don't want just anyone being able to use your property or image anyway they please to make a buck. Licensing gives them some control over what is out in the market and how they are represented.
I can see a church not wanting to have naked girls on motorcycles on the front steps of the church being sold as a calander, just as an example. OK an extreme example maybe.

Belmondo

11th of February 2004 (Wed), 12:56

Jeff:
I don't argue with what you say, and I don't want to belabor the railroad thing. A big difference between auto racing and railroads, however, is that most racing venues have controlled access. To wit, people coming in are essentially licensed to do so, and as such are there at the behest of the sponsoring organization and the host facility. Under those circumstance rules can be created and enforced regarding use of images because the situation is well defined and tightly controlled.

Railroads, on the other hand are arguably in the public domain with respect to their image. And who's to argue, for example, that a photograph taken of a geographical location that just happens to have a train in the picture should not come under the aegis of the railroad arguing its right to protect its image.

If I want to take a picture of downtown Indio (why would I want to do that?), it would be diificult not to find a couple trains with several locomotives parked alongside Indio Boulevard. Should I be precluded from selling my picture of downtown Indio? Perhaps, if either the railroad (or the town of Indio) decides that I don't have the right to profit from their image, even though it is purely incidental to the image being recorded.

It's all very silly to me, but I recognize it as a fact of life. Too bad.

Thos.

Cadwell

11th of February 2004 (Wed), 14:42

IndyJeff

11th of February 2004 (Wed), 16:09

Belmondo I agree 100% with what your saying about the UP being well a dick about the whole thing but, it is their property. Regardless of the fact that it is seen in public doesn't mean it is a public domain thing. It is their property and they couldn't operate withoutr bing in the public view.

Now lets throw another wrench into the works........

Recently Tiger Woods took an artist to court because the artist was using Tigers image in his art works.
Tiger Woods (http://www.freedomforum.org/templates/document.asp?documentID=12210)

And a more in depth look More on Tiger (http://www.artworldnews.com/store/artbusiness1.html)

So whats the difference between Tiger Woods, a "public figure" and Union Pacific?

Hope this is making you think some.....

Jeff

theoldmoose

12th of February 2004 (Thu), 08:32

As an additional nitpick, UP (as all railroads) asserts a 'private property' around their right-of-way.

In other words, if you step on to their property (right-of-way alongside mainline, or into their yards) you are trespessing, and any saleable images you make that prove you were there is like taping a sign to your back that says 'sue/arrest me'.

Now, I have a nice collection of pics of BNSF gear, because I've been a passenger on the Amtrak going out to Montana multiple times. When you get off in various stations along the way, as a ticketed passenger, you are in close proximity to some impressive stuff, particularly in the BN engine shop area at Havre. Things like engine washes, turntables, track inspection machines, and snowblowers are all easily photographed from either the passenger station platform area, or from aboard the train.

As long as you are aboard the train, or don't stray from the platform area or alongside the stopped train, no one has ever objected to my snapping pics, or even setting up a tripod, etc. Frankly, it never occurred to me that the conductors or anyone connected with the railroad would attempt to prevent me from taking pictures. Some of my more interesting pics were taken when overtaking or meeting freights, or shots of wildlife or abandoned houses/farms taken from the lounge car.

On the other hand, they were/are strictly for personal use, and I've never considered offering them for sale.

jim monroe

12th of February 2004 (Thu), 10:44

Just a point of clarification.
Indy Jeff at the finish of one of his responses in the above thread wrote
" I can see a church not wanting to have naked girls on motorcycles on the front steps of the church being sold as a calander, just as an example. OK an extreme example maybe."
I took as a possible implication the church by copyright infringement could stop any sale of such a image. However, having read this and other threads on copyright my understanding is architecture is relatively free of some of the problems discussed above. I believe I have somewhere a recent printout, which I can't lay my hands on right now, stating that buildings built before some date, a fairly recent date like say 1980 not 1880, are not copyrighted.
Assuming then the church, and most churches in my neighborhood are fairly old, was built before this date there would be no copyright problem. I'm assuming for the sake of this that the naked girls are in front of and not on the church property.
Am I wrong?

Scottes

12th of February 2004 (Thu), 11:23

I believe I have somewhere a recent printout, which I can't lay my hands on right now, stating that buildings built before some date, a fairly recent date like say 1980 not 1880, are not copyrighted.
Assuming then the church, and most churches in my neighborhood are fairly old, was built before this date there would be no copyright problem. I'm assuming for the sake of this that the naked girls are in front of and not on the church property.
Am I wrong?

I remember reading the architecture copyright thing, too. I also found a reference on photo.net to 1990 being the year. I also found this (http://www.indexstock.com/photographers/PRguides.htm) link from a stock photo company, listing general guidelines about property releases. Seems handy for a starting point, and it has a sample property release form.

IndyJeff

12th of February 2004 (Thu), 13:22

Jim from what I know and what I can remember, I can be wrong and it sounds like that is a good possibility, the age of the building doesn't matter if it is the central focus of the image and the use is a commercial use. If you take a picture of a building with any signage especially, I am still sure that a release would be needed.
Also Jim I think the church in my above example would be more inclined to a lawsuit based on the naked girls alone, whether they were on the church property or not.

Example, you take a picture of the SBC building in downtown Indy and add it to you calender photos, you are looking at a lawsuit. Same goes for the Scottish Rite Cathedral. I did some photos for a calender back in 96 and the Scottish Rite at night was one of the photos. I did ask for a release and they said no. Money was never brought up they just said they wouldn't do it.

My intent by starting this thread was to bring the idea of copyrights to light for some who may not have a clue about them. If this thread helps one member by making them seek a release before selling a picture and prevents them from being sued, well then it is all good. Right?

IndyJeff

12th of February 2004 (Thu), 13:25

You know when it comes to buildings I think you would be better served by asking for a release and having them say no rather than selling the image and getting a notice of suit against you for that image.

If they sign off on it, your good to go. If they don't then you have saved your bacon.

jim monroe

12th of February 2004 (Thu), 13:56

I agree that the prudent thing in case of doubt is to get release, but quite honestly it is possible to have a situation where you asked for release, they say no, and there is no need for a release. Some places are just uncooperative.
I tracked down where I got my albeit vague understanding regarding buildings. The link is
http://www.photosecrets.com/p14.html
It is confusing however as to what is being discussed in this link. It may be all non-commercial but if so I wish the author had made that clearer, although maybe it is just me and everyone else understands.

Also for Thos I just took out a book from the library entitle: James Welling, Photographs 1974-1999. It has a section on railroad photographs with CSX, PRR, and Conrail diesels and probably several railroads represented with some of the cars being pulled. Based on above the photographer got releases from all these. No UP photos, maybe these other rr's are more cooperative. [/url]

IndyJeff

12th of February 2004 (Thu), 14:19

Good job of hunting that down Jim.

Fortunately for photographers, the copyright in an architectural work does not include the right to prevent others from making and distributing photos of the constructed building, if the building is located in a public place or is visible from a public place. So you don't need permission to stand on a public street and photograph a public building.

From that link this paragraph stated that you don't need permission to shoot a public building. There is the sticking point...public. Most buildings are not public buildings. My interpretation of that would be goverment buildings. A building which is owned by a corp or private individual would not fall under the "public" catagory and would bee seen by the courts as a private building.

Commercial use would probably make a huge different in the copyright holders rights tho.

The part about the 1990 rule is interesting tho. I had never heard that.

jrm

12th of February 2004 (Thu), 15:44

To try and add something to this... The Chrysler Building in New York City is considered a "copyrighted" item. I have noticed that several recent movies filmed in New York (I believe "Mr. Deeds" with Adam Sandler is one - maybe also that Sandra Bullock/Hugh Grant movie) specifically mention the building in the credits and that the likeness of it is used "with permission" from the rights holders.

This building was definitely constructed before the 1980s.

Interestingly, many other buildings/landmarks are recognizable in these same movies - MetLife (formerly Pan Am) building, CitiCorp, Grace, etc. I have never noticed these listed in credits, although it is possible that releases were obtained.

When you think about it, it would be impossible to obtain releases from _all_ buildings (public or private) visible in a movie shot in a city like New York. There must be some kind of "fair use" law that comes into play.

Still, on this subject, it is pretty obvious that common sense has gone out the window. Sure, people have the right to protect their "property rights" but things have gone too far.

In the Tiger Woods/Railroad comparison query mentioned earlier - there is a big difference between the two. Woods is a celebrity and a large portion of his income is based on licensing his name/likeness/endorsement. Not to mention that he is a human (as opposed to an object).

A railroad is not a celebrity and is not in the business of endorsements. You don't see Pepsi or Reebok making deals with Burlington Northern to endorse product. Railroads are also "common carriers" subject to many Federal laws and regulations. This puts them, to a large degree, into the public domain.

You may say "OK, maybe the railroad was a bad example, but what about [insert other example here]?" But that is my point - there shouldn't be a hard and fast rule that covers all situations. There are many individual cases in this, some that deserve protection, some that don't.

I once read about a tree out west (A redwood? A Joshua tree?) that was on private property, but next to a public road. The owner put up sign prohibiting photos of the tree... and threatened to sue. Now, the tree was definitely his property - but not his creation (you can only copyright your creation).

Silly world... too many lawyers with nothing better to do.

--Joe

jim monroe

12th of February 2004 (Thu), 17:08

The link seems pretty explicit on the church example. It states
"You don't need permission to stand on a public street and photograph a private building such as a church or a house. "
That seems rather clear what doesn't seem totally clear can I then turn around and sell copies of these photographs. My understanding from several people I have talked to is yes.
It is of interest to me because someday I could see myself taking photos of various buildings in the area and then possibly going to some local art fair and trying to sell the photos. At least I would like to know if such a thing is strictly allowed or not.
Much of what one reads on the Internet might be very wrong. The women who wrote the short article I gave the link to is a Yale Law School grad specializing in these areas so I believe I can trust what is said. But it does not say I can sell the photos just take the picture. There are several further links on the link I gave so I guess I'll see what they say.
The Chrysler building thing in the movie could be credited for all kinds of reasons and as stated there were several other buildings not mentioned. I didn't see the movie but maybe they had inside shots or something special.

jrm

12th of February 2004 (Thu), 17:21

IndyJeff

12th of February 2004 (Thu), 20:17

It is of interest to me because someday I could see myself taking photos of various buildings in the area and then possibly going to some local art fair and trying to sell the photos. At least I would like to know if such a thing is strictly allowed or not.

Jrm if you sold the pictures at a fair or anywhere else, this would fall under the "commercial use" heading. My suggestion would be to print and frame a nice shot of each building. Approach the owner and seek a release. Showing the print as an example of what you would be selling. Offer the framed print in exchange for the the release if need be and chances are they will ask for it anyway. Also be sure to let them know that if they ever need the shot for their use later down the line you would be willing to license their use of it. I wouldn't mention any cost to license it for their use but, if you get the release and later they want to use it, try and get a few bucks. If the put up a stink about paying you, smile and say "ok 1 year unlimited use at no charge." Just make sure that when you sold it at the fair you made some bucks. If you sold 3 copies at the fair, tell the guy you didn't sell that many and to use it will be $ XX.

Edit
jrm I could have sworn your name nic was Jim. I just noticed the r LOL As Maxwell Smart would have said, "Sorry about that Chief"

Motorsports Photo

12th of February 2004 (Thu), 23:14

The use of photographic equipment is allowed for private purposes only. All other recording and any transmission is prohibited. As a condition of entry to an Event you assign to Octagon (by way of present assignment of future copyright) the copyright in any photographs or recordings you make at the event.

That little gem is taken from the 2003 standard terms of entry to any motorsport venue in the UK that was run by Octagon Motorsport. That's Silverstone, Brands Hatch, Snetterton, Cadwell Park and Oulton Park in case you were wondering.

I don't know about you guys, but I find that VERY annoying. :evil:

That very same sort of statement is made by almost EVERY motorsports organization. Problem is...they cant enforce it.

I'm still in business, but that is probably because I sell to the racers. They buy their pics and thats that. Now if I was selling event posters where you can clearly make out what track it is there are a few tracks that, I think, would say they wanted a fee.

I think this has been a pretty cool thread with nice comments and lots of level heads. (everyone pat yourself on the back!) but I may be shaking it up a bit.

While our past upbringing has been to be polite, do the right thing, etc, a current theme today is screw everyone you can. (remember that corporate greed thing?) Personally I would recommend anyone who wants to sell pictures to go ahead and do it! Dont bother with property releases, etc. Remember that someone else has to "catch" you and then pursue their legal means. Most of the time all they can get is a cease and desist order. No problem, I wont sell that picture anymore. The next guy wants a piece of the profits. OK, I'll give you 10%....Lets see that was 10 pics at $30, ok heres your $30, and I wont print that picture either cause I hate to share! The last scenario involves actual copyright law where a copyright holder sues for damages. Ok how much HARM did you cause by selling those pics? Not enough for that guy to get even a FRACTION of the legal bills incurred.

I'm guessing the Cleveland photographer who made the Rock & Roll HOF poster probably did make a few dollars UNTIL its directors came up with a strategy to stop him. They didnt use the fact he didnt have a property release, they decided the building itself was copyrighted. (hmm that corprate greed comes to mind again.) I followed the story as it happened, but I forget the details now. The whole thing was pretty wacky.

Bottom line: What are they going to do to you? Probably nothing, especially if you stop whatever someone found objectionable.

Please dont use this message as an excuse to do something you know is illegal. I'm just bringing up another view of the same subject.

But as a photographer, I'm tired of being cheated, and I'm sure many "pros" are too. I used to subscribe to PDN until the news section just made me so angry reading about how newspapers, magazines, and stock agencies were cheating photographers.

Please carry on in your usual civilized way.

Respectfully,

-Pete

IndyJeff

13th of February 2004 (Fri), 00:13

Pete, oh Pete where do I begin?

Personally I would recommend anyone who wants to sell pictures to go ahead and do it! Dont bother with property releases, etc. Remember that someone else has to "catch" you and then pursue their legal means.
Pete that is just about the worst damn advice I have ever heard anyone give. Well except for back in high school when a buddy told another friend of ours, "Yeah I think she likes you dude, go over there and put the rap on her." The guy did and got his butt whooped by her boyfriend.

Then you say....

Most of the time all they can get is a cease and desist order. No problem, I wont sell that picture anymore.

Trouble is, if you get a reputation as someone who "steals" others copyrights, someone is going to come down on your hard. If WERA was infromed of a cease and desist order against you I am betting they would ban you, with a camera in your possesion, at all of their venues.

The next guy wants a piece of the profits. OK, I'll give you 10%....Lets see that was 10 pics at $30, ok heres your $30, and I wont print that picture either cause I hate to share!

You hope the guy is that "reasonable".

The last scenario involves actual copyright law where a copyright holder sues for damages. Ok how much HARM did you cause by selling those pics? Not enough for that guy to get even a FRACTION of the legal bills incurred.

How much harm? Granted not all judgements are for the maximum but, are you willing to take a chance? Copyright violation is not like most civil damage lawsuits. Guy hits you walking across the street. He pays for your medical bills, lost wages, and maybe some pain and suffering and if your lucky loss of intimacy with your wife.
Now if it is copyright violation I am afraid you are in for a whole new ball game. First off it is not up to him to prove that you stole the work, it is up to you to prove you didn't. Plus the court looks not only at money lost but, disregard for the law.
Talk sometime with a bar owner who has an encounter with ASCAP. They can tell you about copyright violations.

Violations (http://www.comstock.com/WEB/IHF/LICENSE/IHFLICENSEPIRACY.HTM)

Seamless

13th of February 2004 (Fri), 07:04

ON the Chrysler building thing... I specifically remember it because there were no interior shots, and the building was not used as a "player" or plot device. It did dominate the scene - but then any aerial shot of east side/42nd street would be impossible without the Chrysler dominating the scene. ...

...although an office building in New York (don't know about other cities/countires) is private property, there is a "public use" component. Most large buildings are required to have a "public space" of a certain size. Look at the markers on many sidewalks -
there is a defined public space area. ...

"You don't need permission to stand on a public street and photograph a private building such as a church or a house. "
That seems rather clear what doesn't seem totally clear can I then turn around and sell copies of these photographs. My understanding from several people I have talked to is yes.

I wouldn't be too sure about this. A _public_ building in many cases I would agree. A private building/house might be a different story. If someone took a picture of my home and used it for commercial purposes, I would have a problem with that. (More from a privacy standpoint than a copyright one, but a problem nonetheless).

Greetings.
Some confusion in this thread as to what is being asserted as copyrightable, versus other protectible interests.

First, markers on sidewalks are used to signify where the building premises start. Owners can assert restrictions on public access and type of access from that point into the interior, but not as to surrounding public property. The markers may be helpful in defending against personal injury claims where it can be shown that the location was not owned or under control of the building owner. Surveyors use them for sightlines. Neighboring buildings are on notice of property claims. Picket lines can be restricted. "Public areas" within buildings are likely the consequence of zoning laws and negotiations for allowances from certain restrictions in exchange for public areas, or protection of public rights of way (easements) that were in place before a structure was erected.

Typically, architecture copyright is an assertion as to the design of a structure. It may violate copyright for a knock-off of the Chrysler building to be constructed. Architects and builders do assert copyright as to their designs. A book or collection of architectural images as architecture design could arguably be a violation of design copyright; OTOH it might be fair use (educational text).

Prominent use of a distinctive feature of a structure (or an especially distinctive entire structure) might violate a _trademark_ represented by a famous architectural feature, such as the top of the Chrysler Building. Nobody else can use that image if there is a potential for confusion as to the source of that mark, but that is not a copyright.

If you're taking a shot of a public street (consider aerial photography) and there happen to be buildings on the street, you are not required to remove the buildings from the shot, nor to find an angle that excludes all buildings. There is simply no practicable way to figure out who to contact to determine ownership of rights; the process would be so complicated, expensive and lengthy nothing could ever be published. If the owner did not want the building visible, it should not have been constructed on a public street. Barbara Streisand's suit against a ecological photographer for publishing images of her CA estate is grounded on alleged invasion of privacy.

It's not necessary to secure releases from the owners of all rowhouses or homes for a "San Francisco House Colors" or "Doors of Georgetown" poster. (Using recognizable faces of identifiable persons in an image is a different set of issues.)

There are various defenses, such as fair use, educational purpose, personal (non-commercial) use.

Finally, as to copyright infringement litigation, if you lose you might be liable not only for ALL profits from the image (not just a percentage of profits; and defendant bears burden of proving costs as subtraction from revenue), but wilful infringement of a copyright registration might subject a defendant to an award of attorneys fees and costs (amount within the judge's discretion). Unregistered works create problems of proving actual damages which are typically miniscule compared to litigation costs. And losing plaintiffs can be ordered to pay prevailing defendant's attorneys' fees and costs. (E.g., Babette Ory v. Country Joe McDonald, U.S. Dist. Ct., Central Dist. CA 2003; music copyright infringement case dismissed).

I suspect the railroad claim is based on trademark (use of the RR logo or name), not a copyright.

Jay Giusti

IndyJeff

13th of February 2004 (Fri), 08:28

Good post Jay. By golly boys I think we have a lawyer in here, now we're getting somewhere!

The best advice anyone can get about a copyright violation or lack of would be from an attorney specializing strictly with copyright law, and on a case by case basis.
I think there are general rules or guidelines to go by but, like in the case of the trains if a logo ( UP) would be visable and it was used for commercial purposes it would clearly be a violation of their trademark. Now what if the train was shot head on and no logo or other distinguishing marks were visable, would this be a violation?

Another misconception that some people have is over the words "commercial use". If you use a picture for advertising that is clearly a commercial use but, what if you are selling pictures at a street fair? Is this also a commercial use? It is my understanding that it would be.
Jay, your thoughts?

mjordan

14th of February 2004 (Sat), 00:05

Being able to recover legal and lawyer fees is why I have my images registered. By registering them, if you have to sue someone and win, they get to pay the whole cost of the litagation as well as what ever is awarded.

I had someone infringe on one of my images and use it in a commercial ad to try and sell some very expensive dogs. This was called Blatent Copyright Infringment for Profit. And not only could she pay a hefty fee, but also what ever was determined to be the gross profit she could have made on the dogs (I figured about $20 on one litter) and she had the ad in Dog World under a year contact.

I could very well have set myself up for a nice sum... had I had that image registered. The problem that I ran into was that she owns a art gallery in Virginia Beach and has a IP lawyer on retainer or staff. She's also worth over 4 million in just a couple of businesses she owned. I tried settleing it by having her pay for the use of the image, but she ignored me. And since I couldn't afford the court costs if she wanted to just drag it out (a common practice when someone that has money is going against someone that doesn't), I hit a brick wall. I did get her to pull the ad though, but not till it had printed twice. Both IP lawyers I talked too said it could go as high as $50k in federal court if she really wanted to drag it out. I've not given up my right to sue at a later date... and if I win the lottery, even before I buy the complete Canon system of my dreams, I'm going to write a check to the best IP lawyer I can find and tell him to go get her... just for the principle of it.

But that's also why I register all of my images now... even the dudes, ugly, boring, etc... anything that ever sees the light of anyone elses screen, gets registered... and I hope that another very rich but stupid person does it again.

Mike

ilya

14th of February 2004 (Sat), 00:08

This may be relevant to the subject at hand ~

http://pacaoffice.org/resources/specialReleases.html

IndyJeff

14th of February 2004 (Sat), 02:10

mjordan, who do you register your images with? What are the costs?

Seamless

14th of February 2004 (Sat), 02:43

... Another misconception that some people have is over the words "commercial use". If you use a picture for advertising that is clearly a commercial use but, what if you are selling pictures at a street fair? Is this also a commercial use? It is my understanding that it would be.

"Commercial use" can be defined very broadly; transactions that result in payments are most likely commercial. It might extend to promotional give-aways, demos, website publication, exhibition at shows, certainly distribution of sample products.

The PACA Special Releases List linked by ilya contains good examples, though one really needs to consider the circumstances. For example, use of actual Barbie dolls can be permitted parody even if it put the culture of Barbie in an unflattering light; but note that almost all instances mentioned on the PACA list involve trademarks. (Product tampering to swap Barbie voice recordings such as "math is hard" with counter-gender sayings was an interesting case, but arguably did not involve commercial activity by the perpetrators.)

The interests at stake, and the remedies available for infringement, do make a theoretical as well as practical difference for copyright versus trademark. Copyright was (not sure if still is, in light of the Sony Bono no meaningful limits extension recently upheld) intended to foster creativity while limiting the period for which an author could claim exclusive rights; it is not intended to limit inspiration for another person's works. First Amendment copyright issues also are prominent. Trademarks are premised on the notion that consumers should not be allowed to be confused as to the source of a good or service, therefore a case for public harm can be easier to sustain. How an author qualifies for damages, the amount of damages, and whether attorneys fees can be awarded differ between copyright and trademark.

One other ramification to keep in mind for either is that injunctive relief may be available. You might not just be ordered to disgorge your profits (or all revenues, if you can't prove costs of production), but you might also be ordered to cease distribution/publication, withdraw products and have them destroyed. Those costs can be substantial as well.

If you suspect infringement of your works, don't sit on your rights and allow it to continue. You do need to consult IP (intellectual property) counsel (and not rely on postings in a public discussion forum where your particular fact situation may be entirely different, or even unclear).

Jay Giusti

jrm

14th of February 2004 (Sat), 07:36

Jeff,

No need to wait until you hit the lottery. Simply find another lawyer.

While "top" IP lawyers in big cities can cost a bundle, there are also many very good ones that are much more reasonably priced. Keep in mind that the smaller, better priced firm is also much more likely to give you a higher degree of personal service. The larger firm is often more interested in their larger clients.

If your case is really that clear cut, there are many good lawyers that would be willing to take it for a reasonable fee. Knowing that such a blatant violation happening and allowing it to continue can only hurt your case later on. (I know this is more applicable to trademark infringment, but I wouldn't be surprised if a judge applied the same concept here - "You mean you knew about this for five years, and only decided to do something about it now?" A defense lawyer will use that to big advantage).

--Joe

mjordan

14th of February 2004 (Sat), 21:54

mjordan, who do you register your images with? What are the costs?

Jeff, I register them with the Library of Congress Copyright Office. It takes about 15 minutes to fill out the form, burn a CD and write a check for $30. You can put as many images on a CD as you want and they still only cost $30 per form.

There are a few qualifacations though. You have to register within 90 days of your images being published (if they are published and what qualifies as published is on their web site) and you can't register after a infringement to be able to use the special protection for that infringement.

The registration starts the day the copyright office receives the CD although it could be 6 months before you get the certificate of copyright from them and another several months before your stuff shows up in the online database. But if you have to go to litagation they will pull the information to submit to the court.

Here is the web site with the information and forms:

http://www.copyright.gov/

I send in a Cd about every 3 months, unless I shoot a lot of images from an event that are going to be viewed and possibly sold. Then I register them before I put the images up on my web site.

Mike

Bruce Hamilton

15th of February 2004 (Sun), 10:03

The problem that I ran into was that she owns a art gallery in Virginia Beach and has a IP lawyer on retainer or staff. She's also worth over 4 million in just a couple of businesses she owned.

... and I hope that another very rich but stupid person does it again.
Most people worth over 4 million don't get that way by being stupid, Mike... Her attorney had more than likely searched the archives at copyright dot gov, and found that you hadn't registered the image(s) in question. About the only thing that would've stopped her was a guilty conscience, which she obviously didn't have.

BTW... Nice web site. :)

Motorsports Photo

16th of February 2004 (Mon), 21:49

OK, I'm back. Time to add more to this discussion.

Idyjeff didnt like at least some of what I wrote in the last post, but shucks it was there to spur more discussion, and not necessarily what i would do.

Indyjeff also posted a message about what makes selling an image "commercial." Anytime you get money for an image, thats commercial, whether its in a calendar or sold at a street fair. But as I posted earlier, your chances of being "caught" are minimal at a street fair, so should you take the chance?

mjordan brings up a point where someone with deep pockets used his image. My understanding of his post is he's SOL because the image wasnt registered. Not so! You can still stop publication, and get paid for use of the image. The only loss you have is for DAMAGES (typically trebled) Also if the image was not published anywhere previously, burn your CD, send your $30 and sic the lawyer on her anyway. You do have that time to file AFTER publication. However he does end the post realistically. I takes a LOT of money to fight a copyright case. All our money is tied up in L lenses right? :lol:

All the other info posted agrees with my experience. You file, you wait. You get scared when a government notice arrives in the mail. THEN you remember that copyright form you filed so long ago. :)

Heres the big question: Can an average joe photographer actually file suit over unpaid use or copyright violation and 1. Win, and 2. Actually be able to afford it.

My experience says no. I'm hoping someone out there can prove me wrong.

-Pete

IndyJeff

16th of February 2004 (Mon), 22:52

LOL Pete it's not that I didn't like some of your post, I just didn't agree with some of it. I did wonder what happened to you tho.

To answer your question

Can an average joe photographer actually file suit over unpaid use or copyright violation and 1. Win, and 2. Actually be able to afford it.

I would say yes. You can probably find a lawyer who will take the case on a contingency fee, I think thats what it is called. Anyway, he gets a percentage of what you are awarded by the court.
I think it would be to your advantage to contact the party stealing your image before you see a lawyer. Document the contact and if they flip you off, see the lawyer.
Courts look down upon people who wilfully violate the copyright laws, and those who do the violating are dealt with in stern terms.

jrm

16th of February 2004 (Mon), 22:53

Heres the big question: Can an average joe photographer actually file suit over unpaid use or copyright violation and 1. Win, and 2. Actually be able to afford it.

My experience says no. I'm hoping someone out there can prove me wrong.

I believe the answer is yes. I base this on a similar experience I had. Although it was a trademark case, there was a David and Goliath element to it. For various reasons, I won't get into too much detail, but the gist of it is this:

I work for a very small publishing company. We own registered tradmarks to a few names ot titles we publish. A few years back, it came to our attention that a major (_really_ major) company was using one of our trademarked names for a publication they decided to produce. They are not in the publishing business, and were actually a potential advertising client for us.

We called the IP law firm the originally helped us file the trademarks years earlier. They made us feel like they were doing us a favor for just answering the phone. Said it would take at least $50,000 to get anywhere on this, and much more if the defendant dug in their heels to drag things out.

This wasn't feasible for us. Couldn't afford that kind of money to possibly end up with nothing (The lawyer felt a "cease and desist" would be the likely outcome, with no damages). Unfortunately, if you do not protect a trademark, you risk losing it. What's a little guy to do?

We found another, more reasonable law firm that had an IP lawyer. To make a long story short, a few letters later the other company signed an agreement to immediately cease publication and use of the trademark, and aknowledeged our rights to it. Oh yeah... they also paid us damages. I will not get into exact numbers, but the lawyer fees amounted to about 20% of the settlement (it wasn't large). In effect, it worked out to the same as if the laywer was working on contingency.

I know the differences between copyright and trademark. Still, there are many similarities here.

You can often find a lawyer that will agree to write some letters and lean on the other party. If they are obviously doing something wrong, the other party will usually not "call your bluff" once you retain legal counsel.

And as Pete pointed out, registration of your copyright is NOT necessary to sue and win. Registration does grant you additional legal rights, and make the legal process easier for you, but is not required.

According to the copyright law, all creative works are automatically copyrighted at the moment of creation. You created it - you have the copyright. Period. Failure to register does not allow anyone to steal your work. (This is one of the big differences between copyright and trademark/patents - Trademark/Patents are only valid when they are granted by the government. First one there, wins.) Of course, if someone steals your work and then registers a copyright on it, you would have to prove in a court that you are the author.

You should definitely register your image NOW - especially the ones in question. If the person who stole your images decides to register them with the copyright office (claiming them as her own creation) you would be in a much worse situation, since now you would have a "he said/she said" situation on proving ownership.

Good Luck.[/quote]

mjordan

17th of February 2004 (Tue), 00:57

OK, I'm back. Time to add more to this discussion.

mjordan brings up a point where someone with deep pockets used his image. My understanding of his post is he's SOL because the image wasnt registered. Not so! You can still stop publication, and get paid for use of the image. The only loss you have is for DAMAGES (typically trebled) Also if the image was not published anywhere previously, burn your CD, send your $30 and sic the lawyer on her anyway. You do have that time to file AFTER publication. However he does end the post realistically. I takes a LOT of money to fight a copyright case. All our money is tied up in L lenses right? :lol:

Heres the big question: Can an average joe photographer actually file suit over unpaid use or copyright violation and 1. Win, and 2. Actually be able to afford it.

My experience says no. I'm hoping someone out there can prove me wrong.

-Pete

Pete, you have a few misconceptions there. First off, the copyright law states that you have to be registered before an infringement occurs to be able to take advantage of the special protection of the infringer paying for all court costs. It can still be registered if it's not been published or if it's not outside the 90 days if it has been published, but the special part does not apply to the infringement that has already occurred.

And I did stop the publications in my case. Unfortunatelly, the magazine would not pull the picture without a court order. The woman had already cancelled the ads by the time I had gone to a lawyer to do that but two issues had already hit the press, but the other 10 never got printed.

Also, I did bill the woman for the useage of the two issues. I charged her middle fair market value based on that size ad in a magazine of the circulation that the magazine had. Her comment was that she never paid that much for ad work and refused to pay it. She ignored my invoice even though she did sign for it. My only option after that was to take her to court for copyright infringement. Some people suggested I take her to court for non-payment of the invoice. But with out a contract, she had no legal obligation to pay me and a small claims court would have said it was a copyright issue and to take it to Federal Court.

I could have paid a IP lawyer several hundred to start the paper work in hopes she would cave in and pay, but this is something that once you start, it only hurts the case if you back away after threatening a suit. One of the IP lawyers suggested the invoice attempt the other IP lawyer I talked to said it just muddied the waters if I did sue. So even though my principle was all for taking her to court, my principle didn't have several thousand dollars to throw away should she decide to take it right up to a court appearance before paying the amount I was asking. I would have done it even if I knew I would have broken even.

By the way, I did find out that there is an organization of Lawyers for American Artists that will take on cases like this for free. But they do have a few qualifacations required, one being the amount of income, which I was over. But for others, this might help them if they do qualify.

And yes, an average joe can win and afford it... but you have to have your images registered. Had I had mine registered, both lawyers I talked to would have taken the case, although they said that in most cases, the other side only has to hear the word "registered images" and they fold real quick if they know they are in the wrong.

I look at it as a wake up call. Maybe by getting stung in this case, it will keep me from really loosing big time down the road. If so, I'll say it was well worth it. And I know I have talked a number of budding photographers into getting their pictures registered along the way... so maybe it helped some others as well.

Mike

Seamless

17th of February 2004 (Tue), 23:14

According to the copyright law, all creative works are automatically copyrighted at the moment of creation. You created it - you have the copyright. Period. Failure to register does not allow anyone to steal your work. (This is one of the big differences between copyright and trademark/patents - Trademark/Patents are only valid when they are granted by the government. First one there, wins.) ...

Somewhat in accord with commonsense, but of course there are wrinkles.

A "work" is generally afforded copyright in the US not when it is created, but when it is "fixed." "Fixed" has particular uncertainty for digital files. If you don't have a memory card in your camera when you take a shot, though you can see it on the LCD screen, it probably is not "fixed" for copyright, though it has been "created." Downloading the file to your computer's RAM may not be "fixed," though if you emailed it it to yourself it might be "fixed" by virtue of the file being stored on the ISP's server.

Printing the image, copying the file to a hard drive or CD-ROM--those are "fixed" and would be copyrighted in the US. (The question then is what do you submit to the Copyright Office as a specimen? Usually the printed photo, but it could be a digital file on CD.)

Second wrinkle: given the fact that many photographers conduct business online--"World Wide" web--one should bear in mind that the rules are not the same all over the world, and protection around the world is not necessarily automatic nor equal to the US system. One shouldn't be provincial and dismiss the other major markets around the globe.

Third, and most serious:
"Trademark/Patents are only valid when they are granted by the government. First one there, wins" is wrong.

One acquires trademark in the US through actual use, not through government approval.
And the first one to apply for trademark registration (and often a party who first received a trademark registration) does not mean they own a valid trademark against all other users. Trademark oppositions, cancellation, and infringement litigation are just not that simple.

(Patents I don't really know, but trade secrets are protectible without patent, patents are occasionally revoked, contested on grounds of fraud or pre-existing technology grounds, etc. However, patents are of relatively minor importance with respect to photography.)

Jay Giusti

jrm

18th of February 2004 (Wed), 08:42

Jay,

You make some xcellent points. I admit to simplifying the subject somewhat, and trying to apply it to the question at hand.

Many people confuse copyright and trademarks. For purposes of this discussion, I stand by my point about the government issuing the latter, while the former is "automatic."

The original discussion was about a local person (all in the US) that stole images off a web site and used them without permission. In this case, the web display would constitue a fixed form, and the person that created these images owned the copyright - whether or not they had registered the images. Some posts had implied that there was no copyright, since the images were not registered.

In the case of a trademark, you are correct about it being granted through use. However, there are more wrinkles here than in the copyright situation. My direct experience is with names... there are some that the PTO will not let you trademark, or only trademark for a specific use. Once approved by the PTO, there are provisions to challenge. But as you state, it is not that simple (which is why I hesitate to give an example to illustrate my point).

Again, as it relates to this discussion - assume you did not register a trademark with the PTO and were a "small fish" doing something locally. A large company doing something on a broader basis that decided to use and register that "mark" would likely get it approved and survive any challenge, especially if they have the money for the right lawyers. (In y experience, trademark is all about the right lawyers).

Copyright law, by comparison, is much more in favor of the "artist" as (in theory) this is who is it is designed to protect. I still believe that from what has been explined of this situation, the person should find a local lawyer to discuss it (free consultation). Especially since this is a local situation. If you are going to make a stand, this is the ideal situation. Don't wait for a big, multi-national corporation to steal your work.

If the situation were in another U.S. state, then it gets more involved (i.e. more expensive to persue). If in another country (even if a member of the Berne Convention) then, unfortunately, it would be virtually impossible for an average individual to do anything about it.

I think, for the most part, we are saying the same thing (although I admit, you are able to word it better). On the minor points where we might differ, only a judge could decide who is right. Even then, that decision would be subject to appeal. :D

However, patents are of relatively minor importance with respect to photography.

Tell that to Kodak or Polaroid! (I know, I know. Just kidding!)

--Joe

kahfluie

18th of February 2004 (Wed), 10:04

IndyJeff

18th of February 2004 (Wed), 22:18

Lou I have only shot two concerts, Marshall Tucker Band and Mark Chestnut. Both were extra events that coincided with the Richmond Grand Prix in 2000.
Marshall Tucker was great. The band let the photogs hang out with them after the show and enjoy a few adult beverages. I shot right up front between the band and a barrier that kept the crowd back.
Mark Chestnut, wel that was a different story. The photogs were told up front 3 songs and then your gone from the front. All photos are to be used for editorial use, no personal or commercial sales.
Since I knew of M Tucker Band and never heard of Chestnut, I was more excited about Tucker. Chestnut's people were just plain pricks about the whole thing.

As far as selling pics that you have taken at a concert, if you do so without a release be ready for a letter from a lawyer. If your lucky it will be a cease and desist letter. If not so lucky it will be a notice of lawsuit. Most performers have a licensing fee to sell their image. Of course, editorial use is fair game no matter who the star is.

jrm

18th of February 2004 (Wed), 23:04

This is very good dialogue. I am wondering if I should begin sending in a CD of photos I have taken... the ones where I have taken concert photography. Looking back, I imagine someone could sell these photos on the street and make a profit from my work.

<snip>

My question is... since I am the "creator" of the photo(s), am I allowed to sell these photos for on my own, or do I need to have a release from the artist, or representative from their managent group to do so. I assume I would but wanted to check. If a release is needed, would the artist receive a percentage of the selling price? Does anyone have an example of a release form? Should I really go to the length of sending these types of photos in to the copyright office?

First, on sending a CD to register a copyright - absolutely yes. You have nothing to lose (aside from a very small registration fee). You have much to gain if you every had to protect your copyright.

On the band photos... you own the copyright to those photos. Not even the band can use those photos without your permission.

HOWEVER!!!! you MUST have a release from the band (and possibly others like a record company and/or management company) to use those photos. This is typically called a "name/likeness" release.

I do a project every year that borders the line between "editorial use" and "promotional use." We feature several individuals, some famous - some not, some living - some not. We ALWAYS secure rights from the owner of the photo PLUS get a name/likeness release from the person in the photo.

Because of the nature of the piece I produce (it is given away, not sold) only once were we required to pay a fee for the release. In your case there might be a fee involved.

Do not mess around with this. You are in for a world of trouble if you start selling photos of entertainers without a signed release.

IndyJeff

18th of February 2004 (Wed), 23:37

Do not mess around with this. You are in for a world of trouble if you start selling photos of entertainers without a signed release.

Never has better advice been posted on this board.

mjordan

19th of February 2004 (Thu), 00:14

Just an added note here... most of us have been talking about copyright law as it pretains to the United States. And even though a lot of countries have signed a joint copyright agreement, each country's laws are probably going to differ. Even Canada has added a few twists of their own on copyright... something to do with the customer you take pictures of owns the copyright and not the photographer or something like that.

Also, since copyright is Federal, you have to go through a Federal Court to sue and you need to use an Intellectual Property lawyer who is licensed to practice in a Federal Court.

And though I have talked with IP lawyers and others in here seem to be pretty familiar with the laws and how they apply, I don't pretend to be right about what I think I understand. Even an IP lawyer might not be right in how he interprets the law since only a court of law can make or enforce law.

So when you what all of us are posting, please pick up a few salt tablets on the table by the door. It might help. :lol:

Mike

IndyJeff

19th of February 2004 (Thu), 04:22

something to do with the customer you take pictures of owns the copyright and not the photographer or something like that.

Are you talking about "work for hire"?

kahfluie

19th of February 2004 (Thu), 04:37

Thanks Joe... I'll have to get one of those release thingamahooches and start having them sign it.

Does anyone have an example of what one of these releases would look like?

jrm

19th of February 2004 (Thu), 10:47

Thanks Joe... I'll have to get one of those release thingamahooches and start having them sign it.

Does anyone have an example of what one of these releases would look like?

Try this link

http://www.dpcorner.com/all_about/releases.shtml

There are "standard" model release forms there. This is a good starting point, and probably fine* for regular people. When dealing with entertainers/celebrities, the wording is usually going to be more restrictive and cover a particular purpose(s) - this is what you will negotiate and their people will often have their own release.

You should probably check with a lawyer to make sure the release says what you think is does, and covers the use you intend.

* disclaimer - the link is provided as a reference only. I make no assertions as to the quality/legality of the release. I am NOT a lawyer, although I would like to portray one on TV. Use your common sense and _check with a real lawyer_ then use your common sense again.

--joe