Yet Another Copyright Question

[ken_vaughn]

Hi, I hope things are going well for you all.

 

I searched the word "copyright" and found some information but not

enough to give me a definative (which is not always an easy

proposition) answer to my question.

 

The short of it is, I have entered into a barter arrangement with a

merchant by which one of my activities will be to promote his website.

 

As a draw to prospects I thought about producing (totally original

work) photographs that could be used as "wallpaper" or for use in

screen savers to be given away. I have also thought about producing

videos of the activities this person's products are used in. The

subject of said visual images is an inanimate object.

 

I understand that legally I am probably considered "paid" even though

I won't receive money in this agreement.

 

An example of this would be say I go to a car show or a racing event

and produce photographs of the cars there. Even though the cars are

unique and easily indentifiable as the property of certain entities be

it an individual or a company would the owner have a claim to the

rights of ownership of the images?

 

I'm not as concerned about the ownership of the images with regard to

myself in relation to the "client" in this instance as I am about the

owner of the subject of the work.

 

I am checking first to avoid getting flamed for coming back after the

fact and asking. :o) j/k

 

Thanks for any and all input.

 

Ken

[rubens_abboud]

<p>Ken,<br>

<br>

When you make an image, the copyright of the photograph belongs to you automatically.<br>

<br>

If the photographs will be used to promote a product or service, you generally need a:<br>

<br>

a) model release for each of the human beings recognizable in your image;<br>

<br>

b) property release for each of the distinct objects recognizable in your image (e.g. if the image is made inside someone's home or property, you need a property release from the owner); and<br>

<br>

c) clearance from trademark owners for all visible trademarks (e.g. if you take a picture of someone right next to a golden arches sign and then use that picture to promote your own product or service, you might get a call from McDonald's legal dept. informing you that you are creating the misperception that the McDonald Corp is endorsing your product -- the technical legal term for this scenario is "you're in big doo doo").<br>

<br>

Most of what I said above does not apply when the image is used in an editorial (e.g. newspaper or magazine article) context.<br>

<br>

Please consider the above as a summary to help you in your continuing research. It is *NOT* qualified legal expertise.<br>

<br>

Perhaps, Bert Krages can chime in with further details.<br>

<br>

Best regards,<br>

<br>

Rubens.<br>

<a href="http://www.TheImageNation.com">http://www.TheImageNation.com</a><br>

Travel stock photography </p>

[ken_vaughn]

Rubens, thanks so much for your reply.

 

If I am interpreting what you are saying correctly, in the example I mentioned of taking photographs of a car at either a car show or race track I would need a "property release" from the owner of the car to use it to promote a commercial entity?

 

Thanks again for your time,

 

Ken

[rubens_abboud]

Ken,

<p>Yes.</p>

<p>Furthermore, if the car(s) appearing in your images are recognizable, my understanding is that you would require clearance from the trademark holder (i.e. Ford, GM, etc...)</p>

<p>The Corbis site has some case studies (as it applies to their rights clearance services) that may give you an idea of the different situations that may require extra clearance.</p>

<p><a href="http://pro.corbis.com/creative/services/rights/default.asp">http://pro.corbis.com/creative/services/rights/default.asp</a></p>

<p>This might help in understanding property releases:</p>

<p><a href="http://www.asmp.org/commerce/legal_article_001.php%20">http://www.asmp.org/commerce/legal_article_001.php </a></p>

<p>I remind you that I am not qualified legal help and that I provide this information to assist you in further researching the topics of copyright and trademark clearance as it relates to your situation. </p>

<p>Best regards,</p>

<p>Rubens.<br>

<a href="http://www.TheImageNation.com">http://www.TheImageNation.com</a><br>

Travel stock photography<br>

</p>

[ken_vaughn]

Thanks again Rubens,<br>

<br>

With regard to the ASMP article, while it does say releases should be obtained, it goes further in saying <i>"ASMP has never seen a statute or legal case that requires a release for property."</i><br>

<br>

Then there is the question of "conversion" or benefitting from the use of said photographs. On this the ASMP says <i>"The question is this: is it conversion if I rent out a picture of your house for an advertisement without your permission? The picture of your house is not your tangible property, but the house is. Is the photo of the house the same as the house? <b>We know of no case that has ever settled those kinds of questions</b>."</i><br>

<br>

If the photographs were being sold (I have seen more than one website do this) I can see it as being more incentive for action by the property owner than merely showing the same photographs. I do not mean to say that just exhibiting photographs of someone else's property is not actionable, but it could be a case where the concept of "ask forgiveness rather than permission" would not expose the site owner to any substantial chance of harm.<br>

<br>

Any complaint would result in removal of the photograph/s and I doubt the property owner would go to further time and cost expenditure with full blown legal action especially if the photographs were not being used in a way that could potentially harm the owner's reputation or business.<br>

<br>

Ken

[craig_gillette]

The issue isn't the copyright on the picture you take, that would almost certainly be yours, it's how you use the picture that gets weird. If you mess up, getting flamed here isn't what you need to be worried about.

 

You really need an attorney's advice on this. It's not clear what you expect to do or just what in the way of recognizeable designs, trademarks, etc., etc., etc., you may be capturing and eventually using directly or coincidentally, or how you and/or the "client" are going to be using them. The typical race car is covered with logos and the whole point is to get them in the public eye - to the extent that it's almost impossible to get any kind of picture at a racing event that isn't swamped with logos. Kind of the "any publicity is good publicity" school of product placement. Other companies are rabidly active in protecting their trademarks (etc.) and actively pursue unauthorized uses.

[ken_vaughn]

Thanks for your reply Craig,

 

The reason I mentioned getting flamed (just for the record) and then put j/k (just kidding) after it was I did read many, not all of the responses that came up and in one, a pretty strong flame was applied for asking these questions <b>after</b> the fact rather than before.<br>

<br>

No biggie.<br>

<br>

You mentioned that virtually all of the professional competition cars one sees are virtually covered with logos, "stickers" from many of the manufacturers whose parts the car uses. While I am sure some competitors wouldn't mind doing this without compensation, the fact of the matter is that in professional motor sports there is something called "contingency" by which if a competitor places high enough and is featuring a logo from a manufacturer, that manufacturer is bound to pay the competitor a fee. Often the combined fees from contingency amounts to more than the prize purse for any particular event.<br>

<br>

In essence the manufacturer is paying for the fact that as many eyes as possible are seeing their brand. Part of this "strategy" by manufacturers must be that any car that places high in the results or wins an event is going to be seen and widely photographed thereby giving their brand even more exposure.<br>

<br>

It's hard to imagine that any company would go to the trouble and expense to stop a process that they themselves have paid to facilitate.<br>

<br>

This company, <a href="http://www.autoimagery.com/">Auto Imagery</a> features over 140,000 photos of cars in competition. It's hard to imagine as sellers of these images that they have scrutinized every appearance in every photograph of a manufacturer's brand. Which is not to say that it is not something technically required by law. But if this were the case, there would be little if any profit in selling these photographs.<br>

<br>

Back to my proposed use of similar images. I am talking about displaying, not selling images I would produce. I'm not saying that the fact I would not be selling the images make the difference in whether or not such use would be actionable. Technically, if used to draw visitors to a commercial website, they are still being used for commercial benefit. But again, it's hard to imagine a company objecting to their brand being put in front of potential users of their products when it costs them nothing.<br>

<br>

I intend to actually ask the sellers of these photographs about this but first I wanted to get opinions on it that would be as objective as possible.<br>

[rubens_abboud]

Ken,

<p>As I've said, there is a distinction between editorial use and commercial use.</p>

<p>I can make an image of a race car plastered with ads and use it to illustrate a newspaper or magazine article or book.</p>

<p>Using the same image to push a product or illustrate a commercial website is not editorial and requires a signed release and, perhaps, trademark clearance when the subject is trademarked and recognizable.</p>

<p>Go to www.corbis.com or www.gettyone.com and type "race car" in the search box.</p>

<p>You will find that the images have been blurred or post-processed to make any markings unrecognizable.</p>

<p>A company that goes through the expense and trouble to trademark their business or product wants to extract value and maintain control over the trademarked item. They are not going to just sit and watch their trademarks associated with products and services they did not review and do not "fit" with their marketing goals.</p>

<p>Best regards,</p>

<p>Rubens.<br>

<a href="http://www.TheImageNation.com">http://www.TheImageNation.com</a><br>

Travel stock photography<br>

</p>

[ken_vaughn]

Reubens,<br>

<br>

I went to the site and searched "race cars" as you suggested and clearly saw these brands in the photographs;<br>

<br>

<blockquote><b>Dupont, GMAC, Pepsi, Fritos, 3M, MAC tools, Lowe's, Chevrolet, Castrol, Michelin, DeWalt,<br> Budweiser, Snap-On, Ritz, Drakkar Noir, Goodyear, Dodge, Marlboro, Shell, NetZero,<br> Sunoco, Honda etc...</b></blockquote><br>

<br>

So you are saying that Corbis obtained releases from all of these companies before featuring photos for sale showing their trademarks?<br>

<br>

Ken

[rubens_abboud]

<p>"So you are saying that Corbis obtained releases from all of these companies before featuring photos for sale showing their trademarks?"<BR>

</p>

<p>Ken,</p>

<p>No.</p>

<p>The point I was trying to make is that searching for "race cars" yields a considerable number of images where it is evident that the logos and trademarks were removed in post-processing or rendered unrecognizable by blurring action. The main purpose of doing this is to widen their potential use into advertising and promotion. So, even if they appear with "No property release on file", many CAN be safely used to promote products and services because they are unrecognizable. </p>

<p>Yes, there are images where the logos and trademarks are legible, but these images cannot be used to promote or advertise products or services. </p>

<p>I can make an image of a recognizable race car, even if Michael Schummacher is visible, and use it to illustrate an article on adrenaline, but I cannot use that same image to push my brand of racing tires, or motor oil, for example.</p>

<p>If this does not make things clearer, I would strongly suggest you Google around for "property release", "model release" and "trademarks".</p>

<p>Best regards,</p>

<p>Rubens.<br>

<a href="http://www.TheImageNation.com">http://www.TheImageNation.com</a><br>

Travel stock photography</p>

[ken_vaughn]

I think I have all the information I need.

 

Thanks for your time,

 

Ken