photographer faces lawsuit over glasses worn in photos

DocFrankenstein wrote in post #16295175
What's a "design trademark"?

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

Depends what the design is. Most are patented. Some are copyright. Others are trademarked.

http://www.uspto.gov …fices/pac/mpep/​s1512.html

Kim Johnson Images wrote in post #16295212
This case is brought forth in Danish court. Will it spark a change in US law is the issue....

there are already tons of patent trolls in the us in the technology sector. im sure there will be someone "inspired" by this over in the photography world.

adza77 wrote in post #16294699
So Dan, are you saying that is the case already or that this is the potential if this lawsuit set's a precedence?

The latter. It isn't the case now and there is no law that supports the concept of image rights for physical property - image rights only exist for people. If a judge ruled in favour of the glasses manufacturer not only would they be killing off commercial photography but also damaging any business that uses photographs as part of their promotional toolset.

No. You are allowed to photograph a copyright work (such as a painting, photo or other work) for the purpose of creating a catalogue in order to sell the item.

it is simply redicules! As well as it is with Castles in Europe, they are property to someone, so you need there permission to publish or sell pictures. simply stupid

Are we supposed to undress our clients now? Because Gap will sue you for the sweatshirt they see in the picture, Buckle for jeans, and Crocks for shoes... And this one could be the worst one - Fruit of the Loom will come after you if somebody doesn't pull up their pants right before you click....

The article is from November of 2012. I wonder if there was any sort of resolution yet.

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".

Not comparable.

A photographer who gets his image taken is having someone else commercially competing in the same commercial branch using the photographers photo.

A photo of glasses doesn't compete with the manufacturer of glasses, since the manufacturer doesn't make their income from selling photos of the glasses.

Just to play devils advocate here for a moment (and probably really stir up the pot) but...

No one seems to have touched on the reason why the party is suing?

Straight up, it appears very silly - I agree, but the words of Herbert Spencer ring in the back of my mind:

"There is a principle which is a bar against all information, which is proof against all arguments and which cannot fail to keep a man in everlasting ignorance - that principle is contempt prior to investigation."

Let's say hypothetically speaking, I create a very recognizable trademarked baseball bat, that I'm targeting to the American market. However, a political party called "Seal Clubbers Inc" that want to bring back legalized clubbing use my baseball bat in many of their advertising banners, to the point where many associate my distinct kind of baseball bat with Seal Clubbers Inc. I lose major sales because my market is actively against seal clubbing, and the party. Should I be permitted any sort of grievance?

And before someone nit-picks the impossibility of this hypothetical example to pieces, I've just thrown this together in 2 mins to try and explain a point where some may consider where it might be fair to file a grievance.

While my example is way out there, let's not lose focus that the point is to show the simple fact that no one has mentioned the other side of this story yet. We don't know why they are suing, or what damages they are claiming against. I can't help but wonder if it would be a little more prudent to find these things out first before condemning their actions, regardless of how crazy they initially seem?

adza77 wrote in post #16296480
Let's say hypothetically speaking, I create a very recognizable trademarked baseball bat, that I'm targeting to the American market. However, a political party called "Seal Clubbers Inc" that want to bring back legalized clubbing use my baseball bat in many of their advertising banners, to the point where many associate my distinct kind of baseball bat with Seal Clubbers Inc. I lose major sales because my market is actively against seal clubbing, and the party. Should I be permitted any sort of grievance?

1. Changed my mind - possibly, but only if the usage in question was illegal. They might claim that the item's usage in this way was defamatory. But it would not be the sale of the bat, photographing of the bat or sale of photos of the bat that were actionable, only the proposed usage. And even then I strongly doubt it would be, otherwise gun makers would sue murders who became known for using their products. Ultimately you sell a physical product and your rights over its usage end there.

2. The example is irrelevant to the case under discussion because your example hinges on usage (or at least proposed usage). The use of the bat is what the company feels is bringing them into disrepute, not the sale of the bat to the seal clubbers. The photographer being sued here isn't using the images. He is selling them to other people who are using them. In your hypothetical he would be the shop keeper who sold the bats to the seal clubbers.

Hi Dan,

You make some good points. Not wanting to get hung up on my crude example though, as the idea was simply to focus (excuse the pun ) on the fact that we haven't yet heard the other side of the story.

We don't know the reasons put forward as to why their suing, and I think that it would be good to know both sides before condemning the action entirely.

I thought that was part of the whole concept of trademarking something - to retain the rights of whatever is trademarked (albeit I've been known to be wrong, one or two hundred times before )?

adza77 wrote in post #16296777
Hi Dan,

You make some good points. Not wanting to get hung up on my crude example though, as the idea was simply to focus (excuse the pun ) on the fact that we haven't yet heard the other side of the story.

We don't know the reasons put forward as to why their suing, and I think that it would be good to know both sides before condemning the action entirely.

Completely agree. Our current talk is all conjecture until we find out the exact basis of the case.

I thought that was part of the whole concept of trademarking something - to retain the rights of whatever is trademarked (albeit I've been known to be wrong, one or two hundred times before )?

Trademark rights are more limited than most people think. Trademark law was originally created to protect consumers from confusion/being misled by unscrupulous companies. All it does is prevent another company, in the same industry, from using the same mark (words/logo) to identify a service or product for trade.

A private individual using an item they purchased for personal use (to beat seals to death) isn't trading and thus trademark law is irrelevant.

This sunglasses suit could have a greater effect on general photography than has been discussed in this thread. And like the music industrys policy, could suits like this be expanded to simple posting on the web?? We all know what youtube does if the bots determine a piece of copyrighted music is in your video. As some have mentioned, it's one thing if an object is recognizable by a logo but another if the shape is the criteria used. Will geotagging and exif data be subject to disclosure in cases? If the photog photoshops the image to change any items in question does that make it safe? Where does it end? Totally frivolous suit in my mind but scary that someone took the time to get this instance this far along.

Dan Marchant wrote in post #16294691
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.

Exactly. And this is why I cannot sell any of my images that contain such things (except for editorial use). By "cannot sell", I do not mean that there is any law or court that says I cannot sell the images. I mean that I cannot sell them because none of my customers will buy them from me, due to the fact that they do not ever want even the slightest chance of being sued, or of receiving a "cease & desist" order from someone's lawyer. If nobody will buy something, then you can't sell it, right?

icacphotography wrote in post #16295128
this seems rather insane. I agree with some other posters in that if this is allowed to proceed (presuming the glasses company wins) (even if they can't see any branding logos for example) and then they could basically soak the wedding photog for money.

No, no, no! This is incorrect reasoning. Wedding photos are normally not used for commercial purposes. Their use is personal, for the benefit of the bride and groom, and possibly by their friends & family.

Why do some people not realize that the trademark issue applies only to commercial use of the images? I tried to make that clear in a previous post.

BigAl007 wrote in post #16290875
Tom so as you rightly pointed out it is the USE of an image for commercal purpouses that gives rise to the possible damage. Which is the responsibility of the USER of the image and the party who would be liable for damages. So how come this is a story about a photographer being sued for damages?

lui-même wrote in post #16291171
Why that guy is sued and not the agency that sells his pictures?
Because he didn`t check the question where he was asked wheather the picture contains somebody elses property or not. Or he just said no property on the picture.

Uh, guys . . . this is Yuri Arcurs. He OWNS the agency. He is the most successful microstock photographer in history, and owns his own microstock agency:
http://peopleimages.co​m/