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FORUMS Photography Talk by Genre Transportation Talk 
Thread started 22 Nov 2012 (Thursday) 11:39
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Intellectual Rights

 
veritasimagerynw
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Nov 22, 2012 11:39 |  #1

This is basically the same thread as the one I started in the "motorsports talk" section. Just seeing if anyone in this section has had the same issue.

So, the other day I made up several B&W posters for sale on Zazzle.com. These were taken during the past racing season. Last night I got an email from them stating:

"Thank you for your interest in Zazzle.com, and thank you for publishing products on Zazzle.

Unfortunately, it appears that your product, Rapid Rabbit, contains content that is in conflict with one or more of our acceptable content guidelines.

We will be removing this product from the Zazzle Marketplace shortly.

Please help us make our content approval process better by taking this short survey.

The details of the product being removed are listed below:

Product Title: Rapid Rabbit
Product Type: zazzle_print
Product ID:
Result: Not Approved
Policy Notes: Design contains an image or text that may infringe on intellectual property rights. We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims."


I emailed them back asking what "intellectual property rights" I infringed on, and this was their response.

"You can't use images/photos of any cars/motorcycles/truck​s unless you have express written permission from the makers of the cars/motorcycles/truck​s to do so. Most don't give permission, unless you are a car club and even sometimes not then."

Basically what they are saying is that in order to sell pictures from a public track event, I must get a license from every manufacturer and sponsor. If this is the case, how can any professional motorsports photographer operate within the law? There is no way we could possible obtain all those permissions and licenses.

So, has anyone else run into this problem? Has anyone here gotten licenses from every car/bike manufacturer and sponsor when you've shot a race and sold your pictures? How about you guys shooting at car/bike/air shows?


Kevin
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PhotosGuy
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Nov 22, 2012 14:37 |  #2

Well, I don't know except that it's their guidelines? Except for that, I personally think that they're full of it.


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veritasimagerynw
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Nov 22, 2012 15:12 |  #3

I just wish they made it clear up front, and that they applied it across the board. There are tons of products for sale on their website that violate that rule.

But from my research, VW is rather ****-like when it comes to their image.


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StevePhoto
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Dec 23, 2012 15:04 |  #4

Car manufacturers own the intellectual property rights associated with their products. The presence of a car in a public event or out in public does not give anyone the right to commercially exploit the manufacturer's ownership of the design of the car. And a person's ownership of a car does not give them the right to commercially exploit the design of the car any more than a person's ownership of a music DVD gives them the right to reproduce the DVD for sale. The same applies to other intellectual property, such as sponsor logos, that are typically seen in race photos.


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veritasimagerynw
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Dec 28, 2012 13:55 as a reply to  @ StevePhoto's post |  #5

Yes, but they will allow me to offer prints of the same image for sale. But I can't call them "posters" and have them printed on poster paper.

Like I said at one point before, if you had to get the rights from every manufacturer that is present at every track event before you sold them, the motorsports photography industry would be dead. Heck, motorsports media in all it's forms would be dead. And the same would be true for aircraft and boat photography.


Kevin
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CraigPatterson
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Dec 28, 2012 15:15 |  #6

veritasimagerynw wrote in post #15417134 (external link)
Yes, but they will allow me to offer prints of the same image for sale. But I can't call them "posters" and have them printed on poster paper.

Yes, that's correct. Once you pass into the realm of poster, or t-shirt, or other product, then you're trading on their trademark. If you instead make a print of it, it's considered Fine Art, and is exempt under the Fair Use clause. This distinction helps with people selling photos of events, because they're not selling mass-produced products, they're selling individual art pieces. Additionally, sponsors and manufacturers often have agreements regarding promotion at these events, so there may very well be permission for certain photogs to snap away, but not for others.

Here's an interesting blog post (external link) from Ford about a little kerfuffel they had with a Mustang club. I find it interesting that they make the distinction between selling and not selling, but then at the end, Whitney Drake says how he's eager to purchase his own calendar. So I'm not too clear from that article on whether the calendar was for sale or not, and if it was, why wouldn't it be considered a mass-produced product, rather than fine art?

Here's the Mustang trademark application (external link) as an example, to show you how closely manufacturers protect their trademarks.

Ironically, Zazzle encourages you tosearch for car (external link)s, so their position does seem a bit illogical. As with many such sites, it's probably a matter of some people getting caught, and others not.


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StevePhoto
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Dec 28, 2012 15:34 |  #7

CraigPatterson wrote in post #15417407 (external link)
Yes, that's correct. Once you pass into the realm of poster, or t-shirt, or other product, then you're trading on their trademark. If you instead make a print of it, it's considered Fine Art, and is exempt under the Fair Use clause. This distinction helps with people selling photos of events, because they're not selling mass-produced products, they're selling individual art pieces. Additionally, sponsors and manufacturers often have agreements regarding promotion at these events, so there may very well be permission for certain photogs to snap away, but not for others.

I disagree. There is no inherent legal (or logical) distinction between producing and selling "photographs" and producing and selling "posters". A photograph can be just as "mass produced" as a poster. The law does not automatically consider a photo "fine art". The fair use exception to U.S. federal copyright law is very rarely that cut and dry. U.S. federal copyright law is contained in Title 17, U.S. Code, and the doctrine of fair use is codified in section 107 of the law. You can read more about this on the Copyright Office's website. Here is some of what it says about fair use:

"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."


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CraigPatterson
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Dec 28, 2012 16:01 |  #8

StevePhoto wrote in post #15417478 (external link)
I disagree. There is no inherent legal (or logical) distinction between producing and selling "photographs" and producing and selling "posters".

Your disagreement is valid.

StevePhoto wrote in post #15417478 (external link)
The law does not automatically consider a photo "fine art".

That's true; I should have been more clear in saying that Zazzle is considering that the distinction exists. That's not necessarily true in every case.

This is the most important sentence to take away from your quote:

StevePhoto wrote in post #15417478 (external link)
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.

What is clear though, is that photographers are very rarely punished or even admonished for selling a photo with a trademarked automobile on it. But doing the same thing with an NFL team logo, or even their colors, will get you a call from them, which you will not like, every single time. And that's just for a photo - never mind a poster.

In this case, the law is quite clear in being vague, so the best plan of action is to follow the rules of the site you're using, and make your own decisions regarding how and what to sell in general, based on you and your lawyer's best understanding of what the law might mean. If a certain site tells you they're not going to sell a product of yours, you will not get them to change their mind, so best to just move on.


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RDKirk
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Dec 28, 2012 16:13 as a reply to  @ CraigPatterson's post |  #9

If you instead make a print of it, it's considered Fine Art, and is exempt under the Fair Use clause.

No, it's actually a First Amendment issue that permits sale of the image as an item of free expression (that is, "art").

I disagree. There is no inherent legal (or logical) distinction between producing and selling "photographs" and producing and selling "posters". A photograph can be just as "mass produced" as a poster. The law does not automatically consider a photo "fine art". The fair use exception to U.S. federal copyright law is very rarely that cut and dry. U.S. federal copyright law is contained in Title 17, U.S. Code, and the doctrine of fair use is codified in section 107 of the law. You can read more about this on the Copyright Office's website. Here is some of what it says about fair use:

The courts have ruled that you may, indeed, photograph a Coke can and sell the photograph (or silk screen print) as fine art, but courts have also ruled that you cannot sell such as mugs and keyfobs.

http://thelicensinglaw​blog.com …bama-the-crimson-tide-tm/ (external link)

The logic of the courts is the logic of the courts, but that's where precedent now stands.

One limitation, though, is that the owner of a trademark can sue for damages if they can successfully argue that your artwork materially diminished the commercial standing of their trademark.

That's true; I should have been more clear in saying that Zazzle is considering that the distinction exists. That's not necessarily true in every case.

Zazzle's lawyers will, of course, determine their own level of comfort with legal vulnerability.




  
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veritasimagerynw
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Dec 28, 2012 18:26 |  #10

CraigPatterson wrote in post #15417582 (external link)
What is clear though, is that photographers are very rarely punished or even admonished for selling a photo with a trademarked automobile on it.

The interesting thing about VW's stand on this is that they claim that simply selling a product that has the picture of a VW means that you are claiming that you represent them, and they are concerned that their image may be damaged. But, you would think that a picture of a Rabbit on the track would be a benefit to their image. I highly doubt anyone would see the picture of a VW at a track day and automatically assume the photographer is in anyway associated with the manufacturer. Personally, they need to climb down off their high-horse.

Like I said, imagine you're a motorsports photographer at a Grand-Am race, or better yet Le Mans. Now imagine if you had to track down every car manufacturer to get permission before you sold any of your images to enthusiast magazines, news papers, drivers, teams, etc. Something like this can kill the industry if it were enforced.


Kevin
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StevePhoto
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Dec 28, 2012 18:36 |  #11

RDKirk wrote in post #15417616 (external link)
No, it's actually a First Amendment issue that permits sale of the image as an item of free expression (that is, "art").

Though you may be able to find a court decision that supports this in certain circumstances it's a ridiculous stretch to say the least. By that logic what isn't an expression of speech protected by the First Amendment? If the First Amendment permitted anyone to reproduce anything because they have the right of free speech then what would be the point of the copyright law or any intellectual property law? All of our freedoms have limitations, including freedom of speech. One person cannot violate another's intellectual property rights and then rely on the First Amendment for protection.

One limitation, though, is that the owner of a trademark can sue for damages if they can successfully argue that your artwork materially diminished the commercial standing of their trademark.

One of the grave shortcomings of the American jurisprudence system is that anyone can sue anyone for anything. The owner of a trademark or other intellectual property does not need to successfully argue anything to sue for damages. He does have to successfully argue something in order to prevail.


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RDKirk
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Dec 28, 2012 18:52 as a reply to  @ StevePhoto's post |  #12

Though you may be able to find a court decision that supports this in certain circumstances it's a ridiculous stretch to say the least.

An actual court precedent (two, in this case) can't be called "a ridiculous stretch." At least not in US jurisprudence.

By that logic what isn't an expression of speech protected by the First Amendment? If the First Amendment permitted anyone to reproduce anything because they have the right of free speech then what would be the point of the copyright law or any intellectual property law? All of our freedoms have limitations, including freedom of speech. One person cannot violate another's intellectual property rights and then rely on the First Amendment for protection.

The courts may find those limits in other cases. But the situations we're talking about now are very close to the precedents.




  
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StevePhoto
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Dec 28, 2012 19:30 |  #13

Really? I can point to endless "actual court precedents" that are far beyond ridiculous by any reasonable standard.

Would you please provide citations for the two decisions that you reference?


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RDKirk
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Dec 28, 2012 20:15 |  #14

StevePhoto wrote in post #15418144 (external link)
Really? I can point to endless "actual court precedents" that are far beyond ridiculous by any reasonable standard.

Would you please provide citations for the two decisions that you reference?

http://openjurist.org …on-v-jireh-publishing-inc (external link)

http://howappealing.la​w.com/UnivOfAlabamaVsN​ewLifeArt.pdf (external link)




  
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StevePhoto
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Dec 28, 2012 22:24 |  #15

Both of these cases deal with paintings, not photographs. Both of these cases deal with trademark infringement claims, not copyright infringement, and both specifically pertain to the provisions of the Lanham Act, which deals with trademark, not copyright. In a general sense, both courts acknowledge the difficulty of balancing First Amendment rights against intellectual property rights, including right of publicity. In the only Supreme Court case covering this issue the court held that the First Amendment did not shield the defendant from liability for violating the plaintiff's right of publicity (Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977).

So what does all this mean?

This thread was primarily about Zazzle prohibiting the sale of photos of racecars, and the person who started the thread's belief that Zazzle differentiated selling photo prints from posters, prohibiting the former and permitting the latter. It is my opinion that whether it's called a photo or called a poster does not matter if it's the same thing, namely a photo. It remains my opinion that various parties depicted, and various parties whose property is depicted in the example at hand, namely a photo of a race car driving on a race track, may have standing to object to the commercial exploitation of certain things that appear in that photo, including intellectual property they own, and in the case of people, their likeness. It's also my opinion that a First Amendment defense to some of these claims would be a serious stretch. Contrary to your statement that the cases you refer to are "very similar" to the subject matter of this thread, they are in fact significantly different. In one case you cite a central question came down to the use of Tiger Wood's name in the work of art, and in fact it was not used in the actual painting, which certainly undermined the plaintiff's (ie the company holding the rights to the Tiger Woods name) claim that the painting and prints produced from it violated the Latham Act. In the second case you cite the plaintiff, the University of Alabama Board of Trustees, sought to protect "an allegedly unregistered trademark based on a theory of trade dress which is predominantly a color." In other words, the defendant's paintings showed football players with uniforms that were the same or similar in color to uniforms worn by U. of Alabama players. In both of these cases the paintings (that's paintings - not photographs) did not even contains the actual trademarks owned by the plaintiffs. That is obviously very different from photographs that do contain the actual trademarks and other intellectual property of someone other than the photographer.

As this thread illustrates, the law and judicial system are comprised of endless shades of gray and very little that's black and white. While the various exceptions to copyright law exist, and exist for good reason, the protections the law affords is also there and it also exists for good reason.

There's one more aspect of this discussion worth mentioning. Many a photographer has created a photograph of a car or some other thing, the design of which is owned by someone else, and then asserted an unconditional right to sell copies of that photograph. The reasoning is that they created the photo and they should therefore have the right to exploit its' value regardless of the fact that the photo depicts something that someone else created and owns. What happens then if another person comes along and creates a photograph of the first photographer's photograph of that object? For all practical purposes the photo of the photo could be very close to an exact duplicate of the first photo. Does the second photographer have unlimited rights to sell the photo? After all, he created it. You can find legal precedent on both sides of this question but a legal discussion is not my goal here. I just want to point out to photographers and other creatives that if they would object to anyone "appropriating" their work then they should, in my opinion, try to show the same level of respect for the work of others that they would like others to show them.


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