michaeldaggett Posted January 29, 2012 Share Posted January 29, 2012 <p>I need some guidance on my most recent project. I've taken a photograph while standing in a public street, open to the public. The focus of the print is the Super Bowl XLVI letters on display downtown, with an iconic monument in the background. I'm interested in selling the print.<br> I'm certain the NLF has copyrighted/trademarked the XLVI,Superbowl,Patriots and Giant's Logos. The inclusion of these logos do make my photograph more interesting. However, does the fact that they were on display in a public setting offer me the permission to profit from a photograph?<br> This is on public display during the entire Superbowl Week for everyone to enjoy. There is no ticket, pass or permission needed to view it. Where do I turn for my research on the matter. </p> <p>http://www.photo.net/photo/15062455</p> <p> </p> Link to comment Share on other sites More sharing options...
tim_eastman Posted January 29, 2012 Share Posted January 29, 2012 <p>Good luck with that, as they say! The NFL is a monumental testament to greed, demanding control over every detail of their " brand ", no matter how small or seemingly trivial.</p> Link to comment Share on other sites More sharing options...
Matt Laur Posted January 29, 2012 Share Posted January 29, 2012 Well, Tim, that's because it is, in fact, their brand. And with it they support tens of thousands of jobs, and provide entertainment to many millions of people. Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 29, 2012 Author Share Posted January 29, 2012 <p>What if the person interested in purchasing the print is currently license to sell NFL branded merchandise? </p> Link to comment Share on other sites More sharing options...
Matt Laur Posted January 29, 2012 Share Posted January 29, 2012 I would imagine that their license is VERY specifically worded. Of course it's their use of it that's the issue. Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 29, 2012 Author Share Posted January 29, 2012 <p>Thanks Matt, that's kind of my thought as well, please guide me if Im on the wrong path. Me selling the print to them isn't an issue, it's their use of the print that may be the issue? Is that accurate? What's the difference between me selling it to them, and them selling it to the public?</p> Link to comment Share on other sites More sharing options...
tim_eastman Posted January 29, 2012 Share Posted January 29, 2012 <p>Maybe it is a business model that includes blatant blackmailing of impoverished cities to build multi- million dollar stadiums for multi-millionaire team owners that might give me the idea that the NFL is greedy! Of course these owners are just emulating other business owners in this behavior of blackmail, yet if they are indeed " persons " wouldn't this same blackmail be illegal? That is the beauty of corporate " personhood " all of the privileges with none of the penalties, because they are the " job creators " with all of the immunity that affords.</p> Link to comment Share on other sites More sharing options...
Spearhead Posted January 29, 2012 Share Posted January 29, 2012 <p>The NFL has used access agreements to place incredibly severe restrictions on photographers. In addition, they have a deal with the AP that makes it even more difficult. This isn't unique, the NBA is similar, but it's all aimed at preventing photographers from doing editorial work so that the leagues can make a lot of money off underpaid photographers.</p> Music and Portraits Blog: Life in Portugal Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 29, 2012 Author Share Posted January 29, 2012 <p>This seems to be a grey area, with most erring on the side of caution. Rightfully so, the NFL certainly has more money to protect their name than most individuals, but does that fear alone prohibit the average person from profiting from their photography efforts under free speech and fair use?</p> Link to comment Share on other sites More sharing options...
Spearhead Posted January 29, 2012 Share Posted January 29, 2012 <blockquote> <p> fair use?</p> </blockquote> <p>Fair use is completely irrelevant in this case. It would be worth reading up on it, somewhere like this:</p> <p>http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/</p> <p>It's pretty obvious how little it has to do with this.</p> Music and Portraits Blog: Life in Portugal Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 29, 2012 Author Share Posted January 29, 2012 <p>Yes you are correct, the other sites where i've read about fair use weren't as clear as this one. It seemed to be along the same lines, but this is spelled out better - thanks for pointing it out.</p> Link to comment Share on other sites More sharing options...
Matt Laur Posted January 29, 2012 Share Posted January 29, 2012 <blockquote> <p>... blatant blackmailing of impoverished cities ... this behavior of blackmail ...</p> </blockquote> <p>You keep using that word, but I don't think it means what you think it means.</p> Link to comment Share on other sites More sharing options...
Jerry_ Posted January 29, 2012 Share Posted January 29, 2012 <p>"What if the person interested in purchasing the print is currently license to sell NFL branded merchandise?" Sell the photo, with the paperwork stating you are only selling the photograph to XXXX company for XXXX amount of money. Make the paperwork clearly state you strongly suggest XXXX company contact the NFL for approval to use the photograph as XXXX company wishes.</p> <p>Good luck!</p> <p> </p> Link to comment Share on other sites More sharing options...
craig_shearman1 Posted January 29, 2012 Share Posted January 29, 2012 <p>I'm not a lawyer... But I would say if you had this shot and sold it to a newspaper or magazine and they used it as part of their coverage of the Superbowl, it would be editorial use and that's completely fair game. If you were doing a book on Indianapolis and this were one of many pictures of the city and its various activities along with say various famous buildings, festivals, activities, etc., it would probably be in the clear as editorial or perhaps some variation on fair use. But if you were selling it as a poster, a T-shirt, etc., an advertisement, it would clear cross the line into commercial use and the NFL could come after you. To me the test would be whether the photo has any value without the SuperBowl logo in it. As someone sitting in Baltimore, without the logo, it's just a picture of some anonymous building somewhere that means nothing to me that I would be unlikely to buy. With the logo, it's potentially a piece of SueprBowl merchandise that I would like. In that case, it's the NFL's intellectual prooperty that makes it valuable.</p> Link to comment Share on other sites More sharing options...
daverhaas Posted January 29, 2012 Share Posted January 29, 2012 <p>The NFL is one of the more strict when it comes to protecting their trademarks, logos, etc... There's a reason why many product commercials don't display real team or NFL logos when using an NFL star in the commercial. </p> <p>If you were selling this as an "Art" print - you might, key word is Might - have a shot at winning. As anything else - it would be under the un-authorized use of trademarked logos and images. </p> <p>The NFL is so strict - they won't even allow news reports or radio reports to use sound from the game or clips from the game without prior consent. And that's editorial use. </p> <p>As for the NFL allowing access to photographers - yep - they are right up there with the NBA - Neither will allow game images to be sold or published without permission. And they keep those sideline passes under tight wraps. A few years ago - the NFL even made all photographers on the sidelines wear "Canon" vests. I notice now that they still wear yellow vests - but there is no Canon logo on them. </p> <p>Dave</p> Link to comment Share on other sites More sharing options...
eric merrill Posted January 29, 2012 Share Posted January 29, 2012 <p>Depends on whether or not a judge thinks it's art:</p> <p><a href="http://wwrn.org/articles/20434/?&place=united-states§ion=judaism">http://wwrn.org/articles/20434/?&place=united-states§ion=judaism</a></p> <p> </p> Link to comment Share on other sites More sharing options...
jens_g.r._benthien Posted January 29, 2012 Share Posted January 29, 2012 <p>What about contacting the NFL directly? They should give you a definitive answer...</p> ------------------------------------------ Worry is like a rocking chair. It will give you something to do, but it won't get you anywhere. Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 29, 2012 Author Share Posted January 29, 2012 <p>Thanks Eric, I had considered that angle - that was one of the first avenue's I considered when I started my research. <br> Contacting the NFL directly won't give me a definitive answer, it will give me their opinion, one which I'm sure lies heavily in their favor. Not to say their opinion isn't also provable as fact, but I'm trying to do as much research on the subject beforehand, so the I know how best to ask the question.</p> Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 29, 2012 Author Share Posted January 29, 2012 <p>Sidebar: If I had drawn the image, rather than photographed it, does that change any of the above responses?</p> Link to comment Share on other sites More sharing options...
tim_eastman Posted January 29, 2012 Share Posted January 29, 2012 <p>I know exactly what blackmail means, in this case a definition from my 1966 Websters works quite well " To coerce ( into doing something ) as by threats ", in this case, the implicit threats to move teams unless stadiums are built, in the case of other businesses, to reap huge tax breaks from states that can ill afford them. </p> Link to comment Share on other sites More sharing options...
danmarchant Posted January 29, 2012 Share Posted January 29, 2012 <p>I would like this to be legally fine. If this was an old Coke logo that has been mounted on a building for years then it almost certainly would be. However, given the nature of the logo and the litigious nature of the company involved I am not so sure.</p> <p>Unfortunately copyright law is complex. For example, while it is fine to take photos from a public space of items that are normally on display (such as a fixed, long term art installation) that doesn't necessarily stand for items that are not normally on display (such as a temporary advert promoting the next Superbowl). - What amount of time something needs to be displayed to constitute "normally on display" I couldn't say.</p> <p>Further more copyright infringement may also depend on the items prominence in the picture. A photo of a room with a (copyrighted) work of art on the wall would be considered an incidental use of the copyright work, because the purpose of the picture is to depict the room. Walking up to the picture so that it fills the frame and taking a photo wouldn't be considered incidental because your focus is the picture. As the OP pointed out above the logo in question makes the picture better and thus the companies lawyers might argue it is an integral part of the image and as such its use isn't incidental.</p> <p>Trademark - This shouldn't be an issue because the OP isn't in the football business or selling NFL branded merchandise. However there is an ongoing case where a company is suing Getty for including their trademarks in images that Getty is selling http://www.courtroomstrategy.com/2011/10/makers-of-pine-tree-deodorizers-allowed-to-proceed-with-lawsuit-against-getty-images/</p> <p>They have not and may not win but it just shows one of the key issues, which is that a company can sue you regardless of if they will win or not. Large companies will often initiate/threaten legal action knowing that the little guy will have to back down rather than go to court.</p> Link to comment Share on other sites More sharing options...
Jerry_ Posted January 30, 2012 Share Posted January 30, 2012 <p>"Where do I turn for my research on the matter. " If you want a cake, you find a bakery store. If you think you need *actual* legal advice, find a lawyer in your town or city (hopefully one that understands use of photography....) All of us on Photo Net can add to your original question, but seeking the advice of a lawyer would be the way to go.</p> <p> </p> Link to comment Share on other sites More sharing options...
paulie_smith1 Posted January 30, 2012 Share Posted January 30, 2012 <p><a href="http://biotech.law.lsu.edu/cases/ip/trademark/rock_and_roll.htm">http://biotech.law.lsu.edu/cases/ip/trademark/rock_and_roll.htm</a><br> <a href="http://www.lgtrademark.com/UserFiles/File/Sports%20Artist%20Sued%20Over%20Painting%20of%20Tiger%20Woods.pdf">http://www.lgtrademark.com/UserFiles/File/Sports%20Artist%20Sued%20Over%20Painting%20of%20Tiger%20Woods.pdf</a><br> <a href="http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia">http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia</a><br> If it is sold as "Art" you should be just fine. Chuck Gentile beat the Rock & Roll Hall of Fame. And sports artist Rick Rush beat Tiger Woods. Philip Lorcia Dicorcia won the right to use a street photograph as 'art' for his book.<br> News and Art are two areas that give us more freedom to work in public areas than many realize.<br> Be aware something like these lawsuits cost money to defend. But with precedents like this you are probably on safe ground.</p> Link to comment Share on other sites More sharing options...
craig_gillette Posted January 30, 2012 Share Posted January 30, 2012 <p>While Gentile succeeded in his case with the Rock and Roll Hall of Fame, reading the decision and the dissenting opinion is pretty informative. It was not a unanimous decision in his favor. DiCorcia proved only that the court supported the existing application of the statute of limitations. </p> <p>Again, reading through the decisions and opinions (not just photography blogs or wiki type articles) is useful because they do go into the current state of the law, related decisions and precedents and the like.</p> Link to comment Share on other sites More sharing options...
michaeldaggett Posted January 30, 2012 Author Share Posted January 30, 2012 <p>Thanks Paulie and Craig - very informative indeed.</p> Link to comment Share on other sites More sharing options...
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