re: using copyrighted product in your photoshoot

[Gooshin]

a discussion that didnt really end up anywhere in the "LEGO MEN, picture a day" thread has got me to question some things, as i am planning on doing something along the same lines.

the idea is when a person explicitly uses a known and copy righted product in their images.

such as a photo oh a nike shoe, with the shoe being the main object of intrest

or, lets say a picture of a snickers bar?

or how about well known action figures, such as Spawn Characters.


when doing such photos, are we obliged to notify the respective right owners

what about if we try to sell our particular pieces

is this an international concern? Can LEGO (i think they are swedish?) lay claim to such work if the artist is... lets say from Fiji?

curious minds want to know!

[reeftool]

There probably are legal issues. You would think a company would like the free advertising but I read a story recently of a car club of Mustang owners who made a calender of members with their restored cars and Ford sued them over it. A nice way to treat long time loyal customers!

[khardur]

my guess would be, if you're selling it for a profit and it includes recognizable brands (and is in particular promoting that brand) then you would have to get licensing rights.

I was looking into licensing rules regarding NFL (National Football League, for those not familiar with American football) products one time, and it's quite a thing to be "officially licensed" - I'm sure there were fees involved, but just the mass production you needed to prove you were capable of was something else.

My guess is this: let's take the Lego-a-day thread. Probably the best way to get it published would be to toss the idea around to a major calendar company, who would have the money and production capability to satisfy a big company who may want to market such a thing. Then they would take care of the negotiations with the LEGO company as far as licensing fees and what-not.

Of course the guy who took the photos themselves would actually end up probably getting royalties from it, or paid a calendar rate per-picture for his images, and that would be it. Check "The Photographer's Market" for big calendar companies and such, and submit an idea to them. It couldn't hurt!

[navcom]

If you have very little exposure with your picture, nobody will probably notice or care. If it gets wide exposure, they will. Much of the time, it's just a matter of notifying the company or owner of your intent. I would recommend just letting someone know to cover your bases.

Reeftool is right...most companies like the free advertising, but they still want to be notified that their product is being used, mostly so they know if it will have a negative impact on them. It's great if you put their product in a good light (or neutral light). But if you are using that Snickers bar in an ad campaign that exposes the "evils of junk food"......well.....you know how that will turn out.

If you had informed them up front, it would've saved the legal bills.

Now using a product in "art" is another matter. I believe you have much more leeway as it's "expression" versus commercial interest. I wonder if Any Worhol had a contract with Campbell's Soup?

[MRRiley]

Gooshin,

You are actually mixing up 3 separate and distinct concepts (at least as far as US law is concerned, but I believe the same concepts apply in Canada).

Here are the US Patent and Trademark Office's descriptions of the 3 concepts:

Copyright:

"Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. ... The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine."

Trademark/Servicemark:

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.

Patent:

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. ... The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. ...
There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

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Objects such as you have asked about may be protected by trademarks, patents, or copyrights...

Lego - the Lego symbol or name are certainly trademarked and Lego may have a patent on the design of the attachment method between the blocks. Copyright is unlikely to be involved except for possibly the instruction books or packaging designs. In this case, another company can market connecting blocks called Blocks that use a unique connecting design without infringing on Lego's trademark or patent. Any packaging would also have to clearly differentiate Blocks from Legos

Nike Shoes - The Nike swoop is definately trademarked and they aggressively pursue other companies which try to use something that looks similar. The model names of the shoes may also be trademarked. The basic design of a shoe however is not likely trademarkable and other than specific unique features (like the "swoop") is not likely patentable. Again, copyright is unlikely to be involved except for possibly the instruction books or packaging designs. In this case another shoe company may market athletic shoes but may not incorporate a similar swoop in the design or use a name similar to a Nike model without infiringing on Nike's rights.

Snickers - the name Snickers is trademarked and the exact formula/recipe of a Snickers bar MIGHT be patented. As with the other 2 examples, copyright is not likely a consideration for the product itself. A rival candy company can market a very similar candy bar as long as it is slightly different from a Snickers bar and they use a different name and packaging design.

Action figures such as from Spawn - the Spawn name is likely tradmarked and perhaps copyrighted since it relates to a "lierary" work (aka the comic books). The design of the figures may be copyrighted or patented. These protections prevent another author from using the Spawn characters in his own work without permission. A toy company cannot make copies of the figures such as you describe without a license. The specific characteristics, powers and graphical designs of the characters are also protected. However, a costume and name change along with slightly different powers would generate a new and unique character for the 2nd author. (How many super heros are truly unique these days. they are all copies or amalgamations of the original DC Comics and Marvel Comics characters)

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All this leads me to the opinion that taking photos of the items you list are unlikely to cause any problems UNLESS you try to misuse them in some way...

Lets say you are hired by Adidas to create photos for a marketing campaign. You shoot a photo of a beat up Nike shoe alongside of a clean and new Adidas shoe and the text added by Adidas implies that the Adidas will outlast the Nike. Nike might come after you and Adidas both.

Now, lets say you shot a photo of a runner at the Boston Marathon and you happen to get a real good shot of his Nike shoe. You sell this photo to Sports Illustrated and 10 years latter it ends up in a book of great sports photos. Nike has very little recourse to come after you or SI.

Finally, lets say you do a series of photos of one Nike shoe in hundreds of settings and call it the "Nike Shoe Diaries". Again, you have little to fear from Nike. You have certainly not infringed on their patent or swoop trademark because you are not making a shoe with a swoop on it. You are simply marketing photos of a common material product. Change the name of your project to "Athletic Shoe Diaries" and they can't even say you infringed their trademarked name.

Just like Ford learned with their ill advised censorship attempt at the Mustang Club, these companies have very little to gain and much to lose (in customer and user goodwill if nothing else).

BTW, Navcom is 100% right when it comes to making a product look bad. But at that point they will not be coming after you for copyright or trademark infringement. They will be coming after you for defamation or restraint or damage to trade...

And Khardur... the biggest problem with the NFL is that damned near everything to do with the NFL is trademarked and the actual games themselves are copyrighted. This is why they can get retransmission fees and the like. They won't stop you from taking photos of the game (with "amateur cameras anyway) and can't prevent you from selling a great shot you managed to get from your seat to Sports Illustrated, and as "editorial content" they cannot stop SI from running the photos, but they can stop you from making a book of photos of the Redskins without paying their licensing fees.

finally, a disclaimer... I am not a lawyer, nor do I play one on TV. The opinions contained above should be taken for what they are worth. The ravings of a lunatic which together with 1 dollar, might buy you a cup of coffee.

[falconeye]

A German stock photo agency has laid out the following rules for photos they can accept:

- photos prominently showing a person: ok with a model release.

- photos containing a trademarked product: no way.


Personally, however, I believe that this is exagerrated. I know it is ok to shoot a house from public ground. Along the same lines, I believe that the owner of the trademark does not own the right for photographs of products sold under the trademark. If I buy a bottle of coke, then it is mine. I can shoot it to death and sell the photographs. E.g., in Germany, you basically only can purchase goods. The entire license bullshit doesn't even exist (which is why Microsoft ran into so many problems here...). So, if I buy a bottle of Coke then I do NOT buy the license to drink. I own it. It is mine. Period.

[Gooshin]

okay i guess a specific case in pont

Dollfie Dolls by a japanese company called Volks

i'm planning on purchasing one of them and doing a stylized photoshoot with it depicting emotion and feeling, not really focusing on the doll as a product or comparing it as a product to something else

would Volks ever come after me if this went public?

[MRRiley]

You'd have to consult a lawyer for a definitive answer, but I would suspect that unless you put the doll in sexual situations or made them look bad somehow, you wouldnt have a problem. And as Navcom says, if it's for ART then you have a lot of leeway.

Even Mattel came out on the short end when Aqua made "Barbie Girl" and that was not flattering to Barbie. Recently a photographer put a set of Barbies in very strange situations and Mattel lost a lawsuit over it... see http://www.ncac.org/art-law/sum-mattel.cfm

[Gooshin]

Originally Posted by MRRiley

Even Mattel came out on the short end when Aqua made "Barbie Girl" and that was not flattering to Barbie. If Recently a photographer put a set of Barbies in very strange situations and Mattel lost a lawsuit over it... see Mattel Inc. v. Walking Mountain Productions

muchos gracias

[Damn Brit]

Originally Posted by MRRiley

Even Mattel came out on the short end when Aqua made "Barbie Girl" and that was not flattering to Barbie. If Recently a photographer put a set of Barbies in very strange situations and Mattel lost a lawsuit over it... see Mattel Inc. v. Walking Mountain Productions

Speaking of Barbie:

[hinckc]

@Damn Brit: Whoa! It's Istanbul Barbie!

@MRRiley: As a long time content creator, I'm a bit of an "armchair lawyer" myself, but there's no way I could have written that up as succinctly and articulately as that. Can we move that response to the "knowledge-base" thread so we can link back to it when this gets asked again in x months?

-Chris

[Gooshin]

got an email back today from VOLKS,


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Dear Serge,
Thank you for your email.
Thank you for your interest in utilizing our products in your commercial artwork. We look forward to seeing what kind of images you may create in the future.
When utilizing our dolls in advertisements or other sales promotions, if you are merely selling customized Volks products (for example Dollfie bodies, Lost Angels dolls, Super Dollfie, etc) then you are welcome to do so without requiring permission from us first.
However if you wish to utilize our products in advertisements, sales promotions, or other commercial ventures that are unrelated to selling our products, we request that you contact us in advance. You can advertise or utilize them through your store or shop, via the internet or mail order, at events, or by commission, or other means.
First of all, please send an email to imos@volks.co.jp
We will inform you of the details we will need from you.
We will send you an application for to fill out, and give you guidelines and permissions regarding usage.
Please be sure to display the notice that we will request from you.
There are certain cases where we may ask for a license fee, but it will depend on the situation. Please ask us for further details.
We would be very grateful to have your contact in advance and to know the purpose of your artwork. Particularly, we would like to request that you do not use our products in works with inappropriate or generally unsuitable content.
If you have any further questions or would like any more detailed information, please don't hesitate to contact us again.
Sincerely
VOLKS Web Site Service Center

[procyon]

I recently had a really unbelievable copyright related experience.
I designed a logo for a t-shirt that I ordered for my girlfriend as a birthday present.
I ordered from cafepress.com and they sent me a letter in which they said this image is a copyright infringement and they won't accept any orders with this image etc.
The logo was the well known "intel inside" logo with words exchanged for "princess inside" (my girlfriend really liked this idea ).
I tried to reason with cafepress and sent them multiple letters saying that this is really for my personal use, I'm ordering only one t-shirt, I haven't put it on sale on cafepress (they said something about distributing it on cafepress.com, but I sure didn't put this logo for sale there)
So after exchanging several letters I understood that their policy is - if you have anything copyrighted - they won't touch it. No way.
Strangely though the order went through. Probably they had already printed it before anyone noticed the "infringement" going on.
So what next - photo labs refusing to print images that have any copyrighted logo/shape/name/object on them? Someone wearing Nike, driving Volvo, eating BigMac, drinking Coca-Cola - sorry no prints.
Better shoot with fas primes only to get shallow DOF, less items visible then

[Douglas_of_Sweden]

Originally Posted by procyon

Better shoot with fas primes only to get shallow DOF, less items visible then

One more good reason for fast primes!

By the way, Lego is Danish, not Swedish.

[falconeye]

Originally Posted by Gooshin

got an email back today from VOLKS [...] know the purpose of your artwork. Particularly, we would like to request that you do not use our products in works with inappropriate or generally unsuitable content

Serge,

thanks for sharing this. And it may be wise to adhere to their wishes (in the States) because dolly companies sometimes actually really sue photographers.

Having said this, it does not mean that there is anything wrong in doing whatever a photographers likes in his art work with a doll. To clarify that there are NO restrictions and NO need to ask anybodies permission first, read here:

Tom Forsythe's Food Chain Barbie

We should honor Tom Forsythe effort for free speech and NOT ask a doll companies permission first.