photographer faces lawsuit over glasses worn in photos

Phoenixkh wrote in post #16291253
... those who file frivolous law suits. This suit sure fits in that category in my view, however, I'm not an attorney.

That`s quite a relief.

jrbdmb wrote in post #16291276
I think that intellectual property should be protected, whether it is a photographer's works or a copyrighted eyeglass design.

But there is a huge difference. If you copy the design to make a pair of glasses that is copyright infringement. Taking a photo of a scene that happens to include a pair of glasses isn't. Firstly their inclusion in the image is incidental (they are just one of many elements), secondly you aren't reproducing a significant portion of the work, nor are you interfering with the design owners ability to make money from making and selling glasses. In short a photograph of something is not the same as duplicating a copy of that thing. Just as it isn't copyright infringement to take a photo of a room which contains a painting, or a photo of a building.

OhLook wrote in post #16291043
Doesn't getting paid for an activity make it part of commerce, by definition, and thus commercial?

tlzimmerman wrote in post #16291144
No....you can sell art all day of pretty much whatever you want (for instance go to POD sites and look at all the trademarks that are photographed, or car photos, etc). That is not commercial use.

BigAl007 wrote in post #16291146
No there are plenty of ways to get paid for photography without the use being commercial. Selling prints, or for Editorial use in newspapers and magazines, or even Blogs these days. Just because the photographer gets paid does not make the USE commercial. For the use of an image to be considered commercial it would have to be being used to promote something.

Oh. I was thinking that when a photographer sells a photo, a commercial transaction necessarily takes place. You guys are talking about what the photographer's customer does with the photo.

OhLook wrote in post #16291820
Oh. I was thinking that when a photographer sells a photo, a commercial transaction necessarily takes place. You guys are talking about what the photographer's customer does with the photo.

Yes, the term "commercial use" relates specifically to the use of the image, not the sale of the image. An artists is free to sell their work, even if it is an image of someone else. However you can't use a person's likeness to promote a company/product/cause without their permission. It doesn't matter if no money changes hands it is the usage that is key.

Of course this all meaningless in regard to the case under discussion because objects don't have image rights that can be infringed. Also as mentioned above you aren't infringing the copyright or design rights by taking a photo in which something is featured incidentally.

jrbdmb wrote in post #16291276
And likewise, photographers who have their images taken and used for commercial purposes without compensation should quit complaining, after all they are getting "free advertising".

Fashion trends come and go. I have noticed non prescription eye glasses worn by NBA players, etc. shown on ads for ESPN. I wonder if they paid the eye glasses manufacturer. I do think the number of famous people who are donning non prescription eye glasses as a fashion statement are influencing the public.

I'm not sure stealing a photograph for commercial use is the same as shooting a model who has purchased his/her glasses and is wearing their own possession in a photograph. I might have a different opinion if the eye glasses in question had a prominent logo.

I guess the courts will end up deciding.

IMHO what's worse is it is really a double edge sword. There are many start up companies that would love to have their items, { Glasses, Hat, Headphones } in a photo especially if it's a well know athlete or celebrity just for the exposure. Then again with this filing this company is getting free publicity so who knows

I have two questions when it comes to this case:

Do we know why the party is suing?

I agree - reading this straight up, it seems very silly and over the top. However, I've only heard one side of the story so far. If these glasses are targeted at a particular customer base (for $800 I'm guessing they are), and the images that they were used in was for advertising of a nature that could damage the sales for that customer base (as an example, maybe a voyeur nature that might upset, and potentially turn targeted customers off), then I could potentially understand the case... maybe.

But if it's just a particular companies legal department trying to make a name for themselves, and sue for the sake of suing, then I agree that I hope it will be thrown out of court with damages awarded against the complainant.

How far does this extend?

If I was to take a photo say of a shopping centre with cars parked out the front, for commercial purposes on behalf of the shopping centre, could I be sued by Ford if the cars in the photo's foreground or background included their models of cars?

adza77 wrote in post #16294654
How far does this extend?

If I was to take a photo say of a shopping centre with cars parked out the front, for commercial purposes on behalf of the shopping centre, could I be sued by Ford if the cars in the photo's foreground or background included their models of cars?

It would extend to not just Ford but potentially the manufacturers of every car in the lot, every moterbike, plus the companies that made the tyres on the cars (if they were identifiable). Got an identifiable computer, mobile phone, watch, TV, radio, kitchen appliance, sound system, lights, etc etc in your images.... basically anything with an identifiable design and you would be screwed.

So Dan, are you saying that is the case already or that this is the potential if this lawsuit set's a precedence?

Do shops have to get a release to advertise the items they're selling in their brochures too? :-/

I find it difficult to believe that this is the case, but then again, our laws seem to be designed to make sure no one can no for sure what's acceptable and what's not.

I just hope Mother Nature doesn't sue me for using her trees in my senior portraits.

Senior photos...hmmm...so is this just a stock photography issue, or can wedding/event photographers start being sued because they are selling photos that happen to include designer eyewear, cowboy hats, and jeans? Just curious as to how far-reaching this sort of litigious concern is.

Dan Marchant wrote in post #16293061
Yes, the term "commercial use" relates specifically to the use of the image, not the sale of the image. An artists is free to sell their work, even if it is an image of someone else. However you can't use a person's likeness to promote a company/product/cause without their permission. It doesn't matter if no money changes hands it is the usage that is key.

Of course this all meaningless in regard to the case under discussion because objects don't have image rights that can be infringed. Also as mentioned above you aren't infringing the copyright or design rights by taking a photo in which something is featured incidentally.

Dan probably already answered my question. This make sense...sort of.

this seems rather insane. I agree with some other posters in that if this is allowed to proceed (presuming the glasses company wins) it opens the door for wedding photogs to get sued by just about everyone since any clothing company could say well your pictures include our brand (even if they can't see any branding logos for example) and then they could basically soak the wedding photog for money. America when it comes to lawsuits is ridiculous. Thank God I live in Canada where a lawsuit like this would see the company fined for filing a frivilous lawsuit and being forced to pay the photogs legal costs all while the suit is being laughed out of court.

What's a "design trademark"?

I thought designs is a copyright. Logos and brand names are trademarked. Does the company trademark the shape?

David Arbogast wrote in post #16294984
Senior photos...hmmm...so is this just a stock photography issue, or can wedding/event photographers start being sued because they are selling photos that happen to include designer eyewear, cowboy hats, and jeans? Just curious as to how far-reaching this sort of litigious concern is.

Dan probably already answered my question. This make sense...sort of.

I was being facetious. It wouldn't apply to senior photos. People get shots taken with their favorite cars, baseball bats, gloves, shoes, jeans, shirts, etc all the time and they aren't sued because it's not commercial photography.