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Photography Question 
Matthew M. Sciortino
BetterPhoto Member Since: 8/6/2007
 

Registered or Trademark products in photographs


is it ok or legal to post photographs of things that have a registered symbol on them or is this just asking for trouble?


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2/11/2008 5:57:24 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Not usually. Chances are that any right-protected item would require a release from the entity it's licensed to. When in doubt, the safest way to go is to consult a lawyer in your neck of the woods, who, specializes in intellectual property law.
Take it light.
M


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2/11/2008 9:42:42 AM

 
Matthew M. Sciortino
BetterPhoto Member Since: 8/6/2007
  "Not usually" - not usually "ok or legal" or not usually "asking for trouble"??


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2/11/2008 9:47:33 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  BTW, that doesn't necessarily apply to work for editorial purposes so long as it can't be construed as defamatory.
Drop a dime and get a book or two on the "Law for Photographers" that generally cover releases including property releases and trademark regs.
M.


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2/11/2008 9:50:10 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  "Not usually" - not usually "ok or legal" or not usually "asking for trouble"??

Let me ask you a question: If you stick a fork into a toaster will you get electrocuted some times or all the time or do you need to be standing in water or are you just asking to get electrocuted? Other than editorial usage what's the difference, Matt?

If it's trademarked or otherwise right-protected I'd buy some time off an intellectual property lawyer. That'll certainly cost you a lot less than defending a law suit if you get the trouble you might be asking for, right? And remember. . .this is a bad place to be getting legal advice cause you can't rely on it as a defense at trial.
M.


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2/11/2008 6:56:15 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  someone posting for you mark?you didn't even question if he intended to make money off this.
personal shots or editorial use is only allowed.
why do you ask?


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2/11/2008 10:52:59 PM

 
Matthew M. Sciortino
BetterPhoto Member Since: 8/6/2007
  no, I don't intend on making any money on it. its just a picture I took of a couple vodka bottles full of fluorescent water under a black light... just thought they looked neat and wanted to post them on betterphoto.


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2/12/2008 6:14:50 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  If you don't alter the "mark" or product in any way, if it can be construed as depicting the product and logo in a pleasing manner, without distortion of any kind, and it's not used for any commercial value (like to illustrate another product or advertising your services or anyone elses) then I'd say post it.

I'd also say it would be wise to send a copy of the work to the distiller's media relations people and ask for permission to post it and use it as an example of your work. They'd probably give it to you AND you might get a paying gig out of it. Who knows?

But then...what do I know, right Sam?
M.


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2/12/2008 8:55:10 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  i gotta go with that mark.and yeah,what do you know...make money off an idea,presented in the right way?
ludicrous."mark"


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2/13/2008 10:24:28 PM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  Um, guys... I think a clarification is needed between the meaning of 'trademark' vs 'copyright'... (the original poster did not say what kind of 'registered symbol' was indicated!)

One of many trademark definitions (Google(r) for more :)
Any word, name, symbol, or device used by a person or entity to identify its product and to distinguish them from others.
www.allcorpfilings.com/incorporation-definitions/

The key here is that the entity owns the name or symbol and no other entity may use it (within, possibly, a narrow competative field)to represent any alternate entity, product, service, etc.

It says nothing whatsoever about usage of images of said trademarked entity, product, service, etc. by third parties.

Such limitations fall to another legally protected 'right': copyright.

So, the while the phrase "Mickey Mouse" is trademarked for usage only pertaining to the familiar cartoon mouse by Disney, the IMAGE representation of Mickey Mouse is protected by copyright.

Trademarks have unlimited renewability, however they are subject to reversion to public domain by excessive common generic usage. Copyright ownership, however, has the lifetime of the original author + some number of additional years, with the possibility of extension under certain special conditions.

There are no restrictions on reproducing trademarks, however, civil litigation may be brought if a trademark is used in a purposefully libelous maner.

Copyright, however, is a VERY different story that can get very confusing, at least to me! Generally, copyrighted images cannot be reproduced *in entirety* without violating the author's rights unless permission is granted.

However, summaries or small sections of reproductions are generlly allowed without the author's consent. Typical examples include quoting a few sentences or paragraphs from a book. For photography, the ramifications of this are not clear at all, at least to me.

For example: I know of a NYC photographer who, back in the 1980's, dropped a portfolio at a major Ad agency for work evaluation. The Art Director comissioned a *different* photographer to reproduce a photograph in that portfolio, nearly identically, for a client shoot.

The original photographer successfully sued the Ad agency, the other photographer and the client for copyright violation. I learned this from the lawyer who executed the legal action in a seminar on copyright law by SPARC (Society of Photographers and Artists Representatives) back in the 1980s.

The law has been revised to accomadate digital technologies, but I believe the basics remain the same today for photographic images.

Also, btw, at least as per copyright symbol... no registration (or symbol) is needed to assert copyright.

However, to win in court for back-damages, the copywrited work must have been registered with the associated US agency at the time of violation. Otherwise, the only available action is a 'cease and desist' complaint.

At least that's the law here in the US, as I understand it.

dvc


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2/15/2008 10:34:56 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Ummmmmmmmmm, I think David, you're confusing copyright and trademark law. Remember, "The man who has himself for a lawyer has a fool for a client."

In terms of copyright, in order to sue for infringement the work MUST be in the registration process AND in a timely manner. That's a prerequisite to commencing an infringement action in the U.S. District Court which has exclusive jurisdiction over such actions. Hence, the issue of who prevails and for how much cannot be reached until it has been established that the work is properly registered or in the process of being registered with the Copyright Office.

No, you don't need a copyright symbol on the work along with your name and year in order to assert the work is yours. BUT, there are different types of infringement and if the work is unaccompanied by a symbol, the statutory damages awarded may be significantly reduced. (Innocent vs. willful or deliberate infringement).
M.


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2/16/2008 9:46:56 AM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  Mark, that's basically the same thing I said.

dvc


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2/16/2008 10:56:10 AM

 
Gregory LaGrange
BetterPhoto Member Since: 11/11/2003
gregorylagrange.org
  "There are no restrictions on reproducing trademarks,..."

Should we warn him, or just let him go?


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2/16/2008 11:17:04 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  well, I say we let him go.
matthew is sitting somewhere thinking the photo police are going to storm his door because he has a photo of such?he just wants to show it in good faith.no intentions of defaming or take credit for the product or the advertising.
geez,even in litigation it could be construed as free advertising.
ok matthew,if you submit said photo and,well,some article to a local paper,with confirmation of submission,then post as such?editorial..
is it a technicallity?well??
it does throw in to the mix your intent.
art and expression.some variable to the court system.a loose category and your situation may fit this.
at this point in my ruling,innocent not intentional.
sam


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2/16/2008 6:31:32 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Without intending to be argumentative, David: The two points you made that I wanted to clarify were:

"Also, btw, at least as per copyright symbol... no registration (or symbol) is needed to assert copyright."

I explained why that statement is somewhat vague and ambiguous. While it is true that you don't need a symbol to assert copyright, to claim damages for willful / deliberate infringement, you do. Othewise, the defendant infringer will argue there was no notice, either actual or constructive and they can't be held responsible for work that wasn't properly marked. That either leads to dismissal or a very minimal amount of damages.

And also you mentioned:
"However, to win in court for back-damages, the copywrited work must have been registered with the associated US agency at the time of violation. Otherwise, the only available action is a 'cease and desist' complaint."

Winning in court has nothing to do with the registration process. The registration IS a prerequisite to filing for infringement in the District Court. In other words, you can't get to damages if you can't get into court and you can't get into court unless you can plead and prove the work was registered in a timely manner OR that it's in the process of being registered in a timely manner.

As to a cease and desist "letter" it's not a "complaint" in the sense of a document used to initiate a judicial action. Cease and desist letters specifically notify the offending infringer that the work is yours; that you hold the copyright to the work; that they are infringing on your copyright; that you demand x dollars in damages for that infringement AND that they are to immediately "cease and desist from using the protected work absent your written consent."

Now, just for fun, let's get a bunch of guys wearing photo police masks to go knock on Matts door, shall we?
M


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2/16/2008 6:51:26 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  post the photo matthew.ignorance is bliss.you did nothing wrong.yeah,if you aren't notified to remove the photo your fine.but please play along and we're all looking for our photo police masks.gadzooks batman.
robin


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2/16/2008 8:07:31 PM

 
Matthew M. Sciortino
BetterPhoto Member Since: 8/6/2007
  well, i'm glad that I stirred you all up a bit. I wrote directly to the company asking if it would be ok and they "have no issues" so I may be posting one in the near future. thank you for participation!
-matt


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2/17/2008 7:37:20 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  could've signed that penguin or joker?


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2/18/2008 9:25:56 PM

 
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