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Photography Question 
David Van Camp
BetterPhoto Member Since: 1/27/2008
 

trademark/copywrite restrictions photos in WDW?


I've read very vague and conflicting things on this... maybe someone here has a clue?

If I shoot pictures at, say Walt Disney World and would like to use them for saleable products (say prints, t-shirts, etc.) what kinds of restrictions is a corporation, such as disney, able to place on this practice.

For example, look at shots in my gallery... some are quite recognizable as WDW, some not so much (Cinderella & Prince, for example, could be anyone anywhere, due to extreme digital darkroom.)

If one wants to resale such images / products, how would one begin to proceed?

TIA!
dvc


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2/15/2008 2:30:59 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  David: Before you do anything, you need to have a consult with an attorney specializing in intellectual property law including copyright and trademarks. Unfortunately, you chose one of the world's most regulated and protected product categories there is.

I'm sure you'll find that the costumes and (still) recognizable settings are right-protected and owned by Walt Disney Productions. The actors depicted may still be recognizable by costume and association with Disney. Therefore, using the images without their written consent may be construed as infringement. Alternatively, you can start the long process toward getting their permission by first contacting their media relations people in California and showing them an exact replication of what you propose, get their permission on a case by case basis along with the likelihood of paying a licensing fee for the privilege of using their marks or otherwise protected materials for commercial use.

BTW, the sign you have in your gallery already has the circled "R" right in the middle of it which TELLS you it's a trademarked and right-protected logo.
They have reasons for doing that, including protecting against potential or actual infringement. Using trademarked property logos without the consent of the owner is like taking someones car without their permission.
The same is true in terms of using recognizable images or liknesses for commercial use without their permission.

When you photograph in a Disney Park, they grant you implied consent to do that for personal use NOT to turn the images around and use them to turn a profit in exactly things like you propose. If you doubt this, talk to an intellectual property lawyer and they'll define the more specific parameters OR contact Disney. In all likelihood, they'll either hand you a licensing contract or just deny your request since they control the usage.
M.


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2/15/2008 3:34:40 PM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  Thanks for the response!

Ok, I've heard similar, but I guess I have a more general confusion... I've heard there are recognizable buildings and similar large and obvious artifacts that are also protected by such licenses.

But, how far can such license go?

For argument, let's say the Chrysler Bldg in NYC is likewise licensed. It is, obviously, impossible to take a city-scape of mid-town NYC with out getting this building in the pic, but, also obviously, one need not license with Chrysler (or whomever owns the bld/license now) to sell such pics, or few would be available.

More specifically, the pic I took of the pool area of the Pop Century resort. Or maybe the thousands and thousands of pics of Cinderella's castle.

Can Disney claim greater protection than (say) Chrysler (or if too old consider a newer bldg in mid-town anywhere)? Or, perhaps it would be because you must enter thier property just to get such a shot... if so, what if you shot from a plane?

What are the limitations of such rights? Where are the fuzzy grey areas vs hard fact areas?

TIA,
dvc


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2/15/2008 8:08:59 PM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  Slightly off topic....

Btw, the (r) you refer to, I presume, is on the Yo-Yo? That is a trademark of Duncan, not Disney... Disney obviously included it in an agreement with Duncan, but, I don't believe it is the *statue* (or image there of) that is trademarked by that (r), I *believe* it is the Yo-Yo brand name itself exclusively.

Note that *none* of the Disney-owned images depicted in such statues in the Pop Century Resort (or elsewhere in WDW) carry such (r) marks -- Only third-party company owned logos & brands.

But, this is hardly the same thing as a photo of the statue (which, btw, includes the (r) mark!)

Also, by law *if* I understand general discussions with trademark/patent/copyright lawyers & various readings (but, none specifically on this particular topic): inclusion of (r) symbols for registered logos is really voluntary, at least in prose.

If a trademarked phrase is repeated often enough in common speach/text with out any specific reference or association with the product/company, the company can loose all rights and the phrase will revert to common domain. Yo-yo (Duncan) is obviously very concerned about this and Disney shares such concerns with thier own trademarks.

I heard a story about how Kleenex almost lost trademark status exactly this way and P&G consequently started an agressive campaign to regain control by asking for (r) to be included. Most corporations volunteer this, because of complementary concerns.

However, *I* can say "Kleenex" or "Yo-yo" in any number of printed texts, either for profit or not, with or without the (r) designator, and the trademark owners (if I understand the law correctly) have no legal standing to stop or control such usage, excepting possible cases of liable or other purposeful damage against the company or brand.

Note that this is a very different issue from being able to control comercial explotation of an image of some product or place for profit (without causing libel or damage...)

dvc


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2/15/2008 8:44:57 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  In the world of intellectual property, there's a difference between copyright-protected work, trademarks, and patents. The holder of the right-protection controls the usage or has the right to. Your frustration with that is both apparent and noted. It's not just about controlling commercial use or right to profit. And no, you do NOT correctly understand the purpose, spirit or intent of the law. Particularly the Kimberly Clark trademark infringement case brought to protect the trademark "Kleenex" from being made generic based on its usage. The flaw in your reasoning there is that Kimberly Clark DID move to protect their trademark and copyrights. And successfully, I might add. Just the same as BIC did with a product called "White Out" American Airlines did with a trademark called "Astrojet" and Eastern Airlines did at one time with another airplane called "whisperliner". Did you know the typestyle for Time Magazine is protected? A term, word or typestyle
doesn't enter the public domain because of usage.

This, place, as I've often said, is NOT a good place to be seeking legal advice. One reason is because you can't rely on BP forum advice as a defense at trial (or elsewhere) if a manufacturer sues you for one type of infringement or another. I can however, tell you with no degree of uncertainty that in the event that occurs, the costs to you of defending it (or settling it) would be staggering to you. I know a mom and pop company that was sued for TM infringement by Playboy Enterprises. It took them 12 years to pay off. I can also assure you that corporations take an understandably vigorous and aggessive view at prosecuting infringements of their intellectual properties.

In each instance you mentioned, you're barking up the wrong forum.
Rather, you should be pleading your case to Disney or an intellectual property attorney, as I said earlier.

OTOH, you could either take some legal seminars on the subject from the continuing education section of a local bar assoc. or Federal Bar Association. Or get the whole basis for understanding this highly complex area and go to law school and spend three years learning the fundamentals of law in the U.S. and picking up specialization courses in intellectual property including trademarks, copyrights and patents. I'm sure that's not especially what you wanted to hear but it's the best advice I can give you.
;>)
Mark


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2/16/2008 9:28:26 AM

 
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