Trademark v. Copyright -- a case in Alabama.

05/08/2012 06:02:39 PM · #1

This is fascinating, and it very much affects photographers as a group:

//www.digitalphotopro.com/business/laws-in-collision.html

yanko

Carl Zeiss 50mm ZE f/1.4 Planar T for Canon

05/08/2012 06:58:03 PM · #2

The case describe in the article is really just a money grab on both sides. It's two businesses who's relationship soured and now they are both trying to make a buck off of each other independently and using whatever justfication that will work in court.

yanko

Carl Zeiss 50mm ZE f/1.4 Planar T for Canon

05/08/2012 07:09:01 PM · #3

Btw, I agree with the ruling, which seems pretty consistent with what I've seen before. The parts of the painting that depict Alabama's uniforms are incidental to the purpose of the painting. I also agree that the products the artist was selling (i.e. mugs, calendars, etc) don't fall under the same protection as art since they are not art but souvenirs.

Message edited by author 2012-05-08 19:10:06.

DrAchoo

Panasonic Lumix DMC-LX5

Canon EF 24-105mm f/4.0L IS

05/08/2012 07:19:54 PM · #4

Thanks for the link. I became aware of this case about two years ago because I sit in exactly the same position. The university claims trademark on features within my pictures and feels I need to license them to sell. Although I feel I am on the right side I have not sold my picture out of concern any legal action would outweigh anything I make my a thousand-fold.

Since college football has become big business they have become VERY aggressive at protecting their licensing efforts.

Skip

Canon EOS-1D X

Canon EF 300mm f/2.8L IS USM

05/08/2012 07:52:34 PM · #5

thanks for the update, bear. i first came across that case when doc was trying to figure out his duck deal ;-) and yank's dead-on with his take on it.

in reality it comes down to one thing: if you don't get it all in writing before you start, don't start.

Mike

Tamron SP 24-70mm f/2.8 Di VC USD Canon Mount

05/08/2012 08:42:57 PM · #6

i have heard that some landmarks are trademarked (cant name any specifics) and that if you photograph one you are not allowed to sell that image.

sounds like the same scenario.

also take the NFL, you are not allowed to photograph and sell images that depict players in their uniforms or show the logo with out the NFL's consent, on many billboards and commercials you will see a player wear a football uniform but no logos or number can be shown, even uniform colors are different.

in this case the school owns the copyright to the logos and likenessnes, too bad for the photographer, but that's the game.

i don't get the uncertainty. if its not journalism its trademark infringement.

Message edited by author 2012-05-08 20:45:22.

Panasonic LUMIX DMC-LX100

05/08/2012 09:10:52 PM · #7

Originally posted by mike_311:

i don't get the uncertainty. if its not journalism its trademark infringement.

Just because a trademark is depicted does not make it trademark infringement. Artists are placing recognizable, trademarked things in their images ALL the time and not getting in trouble for it, mostly. What makes this sort of situation different is that the artist is profiting in direct competition with the University's marketing of the same thing.

R.

spiritualspatula

Nikon AF-S NIKKOR 24-70mm f/2.8G ED

05/08/2012 09:17:54 PM · #8

Originally posted by Bear_Music:

What makes this sort of situation different is that the artist is profiting in direct competition with the University's marketing of the same thing.

R.

Sorta, but they're also sorta linked too, which makes it really interesting.
It would be curious to know if when they proposed the licensing if they hadn't asked for all the back works to be included how things would have turned out differently. I'm sure he felt like he was getting strong armed at that point and responded at least in part out of spite.

Panasonic LUMIX DMC-LX100

05/08/2012 09:23:16 PM · #9

Originally posted by spiritualspatula:

Originally posted by Bear_Music:
What makes this sort of situation different is that the artist is profiting in direct competition with the University's marketing of the same thing.

R.

Sorta, but they're also sorta linked too, which makes it really interesting.
It would be curious to know if when they proposed the licensing if they hadn't asked for all the back works to be included how things would have turned out differently. I'm sure he felt like he was getting strong armed at that point and responded at least in part out of spite.

The point I'm making is that an artist selling individual works of art is in what league. Taking the art works and mass-marketing them on mugs, tee shirts, whatever is another league altogether. THAT's in direct competition with the University.

I don't think the Oreos people would come after me if I painted a 20-foot canvas of one of their cookies and it sold through an art gallery. I'm positive they'd serve me with a cease-and-desist if I plastered their logo and/or product on 10,000 coffee mugs and marketed them for 10 bucks a pop on e-bay... The one's a derivative work, the other's profiting off a trademark.

R.

spiritualspatula

Nikon AF-S NIKKOR 24-70mm f/2.8G ED

05/08/2012 09:45:26 PM · #10

This is very true. I only read that one article, I don't know the full backstory, but it sounded as though they were more or less happy with each other and the arrangement that they had up until that point.

But although they are separate revenue streams, I'm not sure they're directly opposite. The folks just buying a cup aren't necessarily interested in a 5 digit cost for a painting. But even so, I do understand that they're seeing each other as a threat economically.

ETA: Wonder if the alumni association still pesters him for money ;)

Message edited by author 2012-05-08 21:46:58.

dtremain

Canon EOS 80D

Canon EF 28-80mm f/3.5-5.6 II

05/08/2012 09:56:33 PM · #11

I could be wrong on this, but my understanding is that paintings have a lot more freedom to represent trademarks without infringement. However, photographs do not enjoy the same protection - generally, if the photo is used as news, just about anything goes. Otherwise, not. You can't even give away the photos - still is considered infringement. So, profit isn't the test for photos.

Mike

Tamron SP 24-70mm f/2.8 Di VC USD Canon Mount

05/08/2012 10:14:24 PM · #12

Originally posted by Bear_Music:

I don't think the Oreos people would come after me if I painted a 20-foot canvas of one of their cookies and it sold through an art gallery. I'm positive they'd serve me with a cease-and-desist if I plastered their logo and/or product on 10,000 coffee mugs and marketed them for 10 bucks a pop on e-bay... The one's a derivative work, the other's profiting off a trademark.

R.

just because people use trademarked items in images all the time doesn't mean they are allowed to do so. i think in most cases the parent companies don't care to spend the money to defend their trademark use as they don't feel threatened by the marginal profit the artist maybe receiving or possibly don't want to bring on bad press.

but in your example if oreo wanted to press the issue, would they have solid legal ground to stand on? i think they would.

Message edited by author 2012-05-08 22:14:47.