Accessory use of products

[sarah_lange1]

Hi, I am photographing cakes and desserts for a local baker and we are looking for nice dishware to photograph them in. Some of the

dishes we have found are identifiable as being made by specific companies. The companies' names would not be visible but they and

their customers would know it's their dishes just by looking at them even though they are pretty generic-looking. In some cases the items

are antiques but the company may still be in business.

 

My question is, is it legal to use these dishes in the photos (which will appear on the business's website and marketing materials) without

obtaining permission or a copyright release? In other words, would it be a violation of copyright to photograph these items, however

incidental they may be to the picture? Thank you.

[ellis_vener_photography]

I would think you will want to use as simple and plain a plate ad posdible so people see your client's product without also

being distracted into thinking about your choice of china.

[sarah_lange1]

Thank you! Yes, the dishes are very plain and for that reason. Nevertheless they are recognizable, hence my question. Thanks again.

[BrianS1664879711]

interesting question. I have no idea about the

answer though. I hope someone has experience

and knowledge to contribute.

[danmarchant]

<p>The answer is "yes, but...."<br>

Taking a photo of a dish isn't a breach of copyright or trademark or any other IP right and neither is using them in an advert (provided that you are prominently displaying their trademark or including text that might be construed as the dish manufacturer endorsing your product. In cases like this people often talk about Property Releases (like a Model Release for physical property) but in law there is no such thing. (Which doesn't stop stock photo agencies from requiring them).<br /><br />However, even though there is no legal basis for someone to sue that doesn't mean someone wont try. If you want to avoid any potential problems then your client should really contact the manufacturers to get clearance from them. <br /><br />You should probably have a clause in your contract that your client will indemnify you against any loss as a result of a legal suit in the event they don't get permission.</p>

[DrBen]

<p>I am not a lawyer so I cannot give legal advice, but I do have an informed opinion on this subject.<br /> First, one cannot copyright a plate. However, one can protect "the ornamental design of a functional item" with a design patent to protect the item's "ornamental design" elements (colour, shape, graphic pattern, etc.). A design patent does not protect against the publication of visual representations of the item. It protects against manufacturing, distributing and/or selling copies (knockoffs).</p>

<p>The presence of a patented protected item in a photograph is not prohibited. If it were, permission would be required to publish photos of almost everything. Many (especially high-end) items are protected by a design patent (furniture, jewelry, dishes, carpets, beverage containers, etc.).</p>

<p>You cannot sell your own soda in a knockoff of the iconic Coca-Cola bottle. But you can publish photos in which people Coca-Cola bottles are seen.</p>

<p>If issued on or prior to December 18, 2013, a design patent is valid for 14 years. New patents issued after that date are valid for 15 years.</p>

<p>A trademark is valid indefinitely and protects against consumer confusion about who actually manufactured an item.</p>

<p title="Coca-Cola">The contour Coca-Cola bottle, for example, was covered by a now expired design patent, U.S. Patent D48,160, but is still however protected by at a US registered trademark. The trademark protects against swill being thought to be Coke simply because of the shape of the bottle.</p>

<p title="Coca-Cola"><br />In your case, a design patent does not prevent you from photographing food on a Wedgwood plate.</p>

<p title="Coca-Cola">The Wedgwood trademark is not violated; you are not using a non-Wedgwood plate in a manner that leads the viewer to think that it is one (to the detriment of the manufacturer).</p>

<p title="Coca-Cola"> </p>

<p title="Coca-Cola">However, if you used a copyright protected photo from the Wedgwood catalog and then photoshopped it to hold your pastry photo, you would need permission.</p>

<p title="Coca-Cola"> </p>

[sarah_lange1]

<p>Thank you Dan and Benoit for your thoughtful and detailed answers. They were both very helpful. Thanks for taking the time to respond and offer your advice.</p>

[danmarchant]

<p>My post above should of course have read...<br>

"provided that you AREN'T prominently displaying their trademark"</p>

[sarah_lange1]

<p>I figured that Dan. But thanks for clarifying. </p>