Copyright/trademark question

[UVB]

Here's a question I'm hoping some of you may be able to answer for me. I've tried trawling the web for info but can't seem to get a definitive verdict.

If I take a picture of a car (or collection of cars), am I infringing the manufacturers rights by using those images for commercial purposes? For example, if I print a Supercar calendar with images from twelve different manufacturers cars on them?

[Chicken Pox]

I would imagine so long as you are not claiming it is an "official" Lambo etc calender you wouldn't be, given the number of them that are available dirt cheap from card chains etc I can't see how they would make any money if they needed permission/ pay royalties etc

I could be wrong though, is it not worth giving one of there PR teams a shout to see what they say?

Good luck

Pox

[Rinko]

I would say that the question is whether the car manufacturer has in someway protected the "likeness" of the car you are photographing.

As I understand it, photographing an object subject to copyright falls under the banner of "reproducing it" - which is restricted with the right to do so being delegated by the copyright owner. Although some would argue that they are creating a new and original concept (i.e. the image of the object), and as such aren't subject to the controls of the act.

Trademarks are also offered some protection, to prevent confusion regarding the affilition of the trademark (or trademarked object) within the context of the image. The example I have seen cites Nike branding on clothing in an image appropriating some of the goodwill associated with the brand.

Given the number of similar products on the market, either there is provision for it to occur - or they are gambling that they aren't going to get caught!?!

Also - I don't know how the different copyright rule around the world affect any of the above?!

I'm sure someone with a firmer grasp of the law in this area will be along to correct me, but that's my 2p worth!

[pixelpimp]

No.

Your photo = your copyright regardless of what the subject is.

[MartinP]

pixelpimp said:

No.

Your photo = your copyright regardless of what the subject is.

Afraid that is not true. To photograph something protected by copyright is a breach of that copyright. Otherwise you could just go and photograph somebody else's photo and then sell it yourself...

Would be interested to understand about copyright of photos relating to cars though - as said above there are enough pictures of them around being sold... Maybe the car industry just doesn't pursue it as its all free advertising.

[Famous Graham]

pixelpimp said:

No.

Your photo = your copyright regardless of what the subject is.

Not quite. Recognisable logos/trademarks (such as a car manufacturer's badge, or the McD "Golden Arches" etc) do have some quirk associated with them with regard to image rights. I don't know the details, though - but I do know that stock sites will not accept them.

eta - a quick bit of googling implies that they are not copyright, as such, but trademarks. Which is slightly different, although still protected. The gist that I got was that you're free to photograph them and use them editorially (much like people without a model release in the UK), but that you're not allowed to profit by them.

Edited by Famous Graham on Tuesday 2nd August 17:18

[pixelpimp]

MartinP said:

Afraid that is not true. To photograph something protected by copyright is a breach of that copyright. Otherwise you could just go and photograph somebody else's photo and then sell it yourself...

Would be interested to understand about copyright of photos relating to cars though - as said above there are enough pictures of them around being sold... Maybe the car industry just doesn't pursue it as its all free advertising.

I agree about copying someone photo or painting, that's obvious but the photo below belongs to me, not Lamborghini.
I can have this in any advertising I choose to because it's a photo of a badge on a car. It is not a logo.

[Famous Graham]

Nope, fraid not.

It's a trademark.

Intellectual Property Office said:

A registered trade mark:

may put people off using your trade mark without your permission
makes it much easier for you to take legal action against anyone who uses your trade mark without your permission
allows Trading Standards Officers or Police to bring criminal charges against counterfeiters if they use your trade mark
is your property, which means you can sell it, franchise it or let other people have a licence that allows them to use it.

More here :

http://www.wipo.int/sme/en/documents/ip_photograph...

Even car shapes fall under it, which I wasn't aware of. See near the bottom of this page :

http://www.photosecrets.com/photography-law-tradem...

NOTE: I'm talking about using said photographs for one's own gain. You're obviously perfectly entitled to shoot something for personal use. And yes, you certainly own the photograph in terms of copyright. You just can't do anything commercial with it.

Edited by Famous Graham on Tuesday 2nd August 18:02

[Rinko]

pixelpimp said:

No.

Your photo = your copyright regardless of what the subject is.

I think I can see the angle you are coming from - that the actual image you have created is your copyright, and with that I completely agree (unless you are shooting on behalf of an employer or under contract which passes copyright to someone else, of course).

However, I think my earlier post, and Grahams's follow ups, are concentrated on the content of your image; whether it is subject to copyright or protected by a trademark and particularly how you intend to use the image.

I see that the page Graham linked to regarding cars relates to rulings in the US and whether it holds true in the UK is another matter (as I hinted at earlier), but I suspect it might.

The crux of the matter is really what you intend doing with your image of a protected "object" - personal and editorial use would be allowed under as I understand it, but anything commercial (again as Graham mentioned) is likely to be prohibited unless you are doing so with the copyright/trademark owners permission.

[Famous Graham]

Rinko said:

I see that the page Graham linked to regarding cars relates to rulings in the US and whether it holds true in the UK is another matter (as I hinted at earlier), but I suspect it might.

I believe it's the laws of the trademark holder's country, ie a UK citizen selling an image containing a trademark of a US company would be pursued under US law. But IANAL etc.

[jr502]

pixelpimp said:

I agree about copying someone photo or painting, that's obvious but the photo below belongs to me, not Lamborghini.
I can have this in any advertising I choose to because it's a photo of a badge on a car. It is not a logo.

Yes you own the photo, not lambo, but that doesn't mean you can do what you want with a protected trademark.

[GetCarter]

pixelpimp said:

I can have this in any advertising I choose to because it's a photo of a badge on a car.

You can ...but you'll get screwed.

[Rinko]

Famous Graham said:

I believe it's the laws of the trademark holder's country, ie a UK citizen selling an image containing a trademark of a US company would be pursued under US law. But IANAL etc.

Ahh - interesting, it that seem to make perfect sense.

I was only really questioning it because of the very different applications of "copyright" protection around the world (e.g. China). I suspect that in those circumstances, if the situation is as you have described, you could "win" in your juristiction - but you'd never be able to enforce if the person you were pursuing was in a country with incompatible application of copyright?

[mattdaniels]

UVB said:

If I take a picture of a car (or collection of cars)

If that collection of cars is on private property and you are on private property taking the photo, the property owner can also impose restrictions on what you can/can't photograph and what you can/can't do with the images.

[UVB]

Thanks for the responses; it's pretty much as I'd imagined ie the manufacturer will have some sort of protection related to the car so I'd need permission or a license.

[RobDickinson]

UVB said:

Thanks for the responses; it's pretty much as I'd imagined ie the manufacturer will have some sort of protection related to the car so I'd need permission or a license.

You think Autocar or top gear magazine get explicit agreements from the makers for image use for commercial printing?

You think our very own GRWilliams et al get manufacturers say so for profiting from pictures they take of private individuals cars?

You thing your average commercial rally tog gets permission frop the makers for pics ?

So long as you are in a public place or have permission to be where you are and take photos for commercial use you can do so.

What you cant do is use your picture of a ford focus to advertise how your car is better than a ford focus.

Shoot away, make a calendar , sell it, no worries.

[LooneyTunes]

UVB said:

Thanks for the responses; it's pretty much as I'd imagined ie the manufacturer will have some sort of protection related to the car so I'd need permission or a license.

I am 99% certain this is not the case.

If I were you I'd have a quick chat with the Intellectual Property Office about trademarks - they're usually pretty helpful.

[Silver Smudger]

Famous Graham said:

Nope, fraid not.It's a trademark.
...More here :

http://www.wipo.int/sme/en/documents/ip_photograph...

Even car shapes fall under it, which I wasn't aware of. See near the bottom of this page :

http://www.photosecrets.com/photography-law-tradem...

NOTE: I'm talking about using said photographs for one's own gain. You're obviously perfectly entitled to shoot something for personal use. And yes, you certainly own the photograph in terms of copyright. You just can't do anything commercial with it.

Edited by Famous Graham on Tuesday 2nd August 18:02

If you study the 2 articles you linked you will find that -

First link says - Unlike copyright law, trademark law as such does not restrict the use of a trademark in a photograph. What trademark law does forbid is using a trademark in a way that can cause confusion regarding the affiliation of the trademark owner to the image. .... Example: Printing a photograph containing the Nike trademark on sportswear could result in trademark infringement.

So just don't put a Lambo logo in the corner of your photo of a Lambo

And

Second link says - Case law has provided for photographers some other examples of what can and cannot be protected by trademark law.Can be protected by trademark: Car shapes. The distinctive appearances of Ferrari automobiles were upheld as trademarks (Ferrari S.P.A. Esercizio Fabriche Automobile Corse v. Roberts, 944 F.2d 1235, 6th Cir., 1991).

The case of Ferrari SPA vs Roberts was all about making a replica of a Ferrari (with no Ferrari badges on), not a photograph of a Ferrari.

You are still fine to sell a photo you took of a Lambo in the 'UVB Supercar Calendar 2012' - as long as you make the UVB logo big enough that you don't give the impression that it is an official Lambo calendar.

[UVB]

I suspect we need to find ourselves a firm of solicitors who have a more ballsy approach to this type of thing and have a procedure for dealing with "cease and desist" letters.