# Legalities of photographing vehicles and cityscapes?



## Tailgunner (Feb 3, 2014)

Hi, 

I have just recently submitted a sample selection of photos to a stock image site in which half was rejected. The reasons was as follows; "Image potentially infringes on intellectual property rights." The photos in question contain images of cars taken at a local car club where area photographer clubs was invited. The remaining photos are cityscape scenes taken of downtown Dallas TX. Only one photo had the potential to single out a specific building(s). The building in question is iconic but I'm not aware of it being copyrighted/trademarked (if that is possible in the US) and is often photographed. 

My questions are regarding the legality of such photos and not so much C&C. I'm aware that I'm seeking legal advice from the internet but I'm looking for general information from those in the business in hopes of clearing this up some. So I'll post a couple of the photos and would like to hear from the pros if these photos infringe on intellectual rights. I'm not trying to argue either for or against, just looking for a better understanding for future photo shoots as to avoid possible legal issues. 

Thanks, 

Ray


----------



## bribrius (Feb 3, 2014)

you too? I read that and couldn't seem to figure out what they wanted. Do they want me to go person to person and ask for them to sign off allowing it? seems kind of ridiculous imo.


----------



## Nevermore1 (Feb 3, 2014)

If these were submitted to stock photo sites I suspect that the brand symbol/logo on the car and the company signs on the buildings are the issues  (that looks like a Sheraton Hotel in the cityscape photo but I'm not positive, I need new glasses).  Maybe try photoshopping those symbols/signs out and resubmit to see what they come back with.  I know that a lot of TV shows/movies make up their own "brands" for props (soda cans, cereal boxes etc) because if they use a name brand they have to pay the company for the rights to show it on the screen.  I believe it is the same for pictures on stock sites, you are making money off their brand.


----------



## Tailgunner (Feb 3, 2014)

Nevermore1 said:


> If these were submitted to stock photo sites I suspect that the brand symbol/logo on the car and the company signs on the buildings are the issues  (that looks like a Sheraton Hotel in the cityscape photo but I'm not positive, I need new glasses).  Maybe try photoshopping those symbols/signs out and resubmit to see what they come back with.  I know that a lot of TV shows/movies make up their own "brands" for props (soda cans, cereal boxes etc) because if they use a name brand they have to pay the company for the rights to show it on the screen.  I believe it is the same for pictures on stock sites, you are making money off their brand.



Thanks, that is probably it.

I have been photoshoping some of the logo/signs out just because of being eye sores...that chase logo is absolutely horrid for example. I'm going to work on this and try it again. 

Thanks


----------



## Steve5D (Feb 3, 2014)

I remember hearing something a few years back about Ford Motor Co. filing a lawsuit against a Mustang club which produced a calendar for sale. If I recall, Ford's position was that no part of a Ford Mustang could be shown, because every part of the car could be easily identified as a Ford Mustang. 

Ford won the lawsuit and sales of the calendar were halted...


----------



## Tailgunner (Feb 3, 2014)

Steve5D said:


> I remember hearing something a few years back about Ford Motor Co. filing a lawsuit against a Mustang club which produced a calendar for sale. If I recall, Ford's position was that no part of a Ford Mustang could be shown, because every part of the car could be easily identified as a Ford Mustang.
> 
> Ford won the lawsuit and sales of the calendar were halted...




Ya, I remember that case. Ford finally realized their case was doing more harm to their brand than good and released the images.


----------



## Steve5D (Feb 3, 2014)

Tailgunner said:


> Steve5D said:
> 
> 
> > I remember hearing something a few years back about Ford Motor Co. filing a lawsuit against a Mustang club which produced a calendar for sale. If I recall, Ford's position was that no part of a Ford Mustang could be shown, because every part of the car could be easily identified as a Ford Mustang.
> ...



Hadn't heard that...


----------



## sk66 (Feb 3, 2014)

The issue is trademarks...
In the first image it would be very hard to use the photo commercially without a strong "Ferrari" association...the image is "only" about the Ferrari. In the second image, it is clearly a cityscape and the association to any one building/sign is trivial.
For the first image I see their point; on the second I disagree.

Including a trademark is not enough to cause trademark infringement... but they just don't want any potential of hassle for themselves or their clients.


----------



## KmH (Feb 3, 2014)

If you would like a better understanding of the issues related to modal/property releases, trademarks, and licensing - A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things

 See pages 231 - 239 of the above book for more about buildings, including private homes.


----------



## Tailgunner (Feb 3, 2014)

Steve5D said:


> Tailgunner said:
> 
> 
> > Steve5D said:
> ...



I'm a car guy and have owned several Fords, currently driving a Raptor. This case went viral through out the automotive world in just hours after the initial posting. 

Ford responded saying they don't mind if Fans took high res images of their cars in order to make calendars for club sites etc etc as long as they don't use their logos to promote sales. Several sites has since made calendars using images of their Ford vehicles (SVTPerformace.com for example). Ford technically never sent a Cease and Desist letter to Black Mustang Club, it was their host or parent company that ordered them to stop production of the calendar in fear or Ford reprisals. (SVTPerformance never payed it any attention and continued). I've slept since then (this took place back in 2008) but I really want to recall Ford didn't have a legal foot and why they didn't fully pursue the case(s). Now this is not to say Ford want, they sent out several Cease and Desist letters during this time to sites using one of their copyrighted names (Ford has copyrighted everything, even the word "Pony"). One was a Mustang or Pony parts site who was a Ford OEM parts dealer. Its been a while but I believe they changed their name to something like Performance parts or muscle cars even though they specialized in Mustangs only.


----------



## Tailgunner (Feb 3, 2014)

sk66 said:


> The issue is trademarks...
> In the first image it would be very hard to use the photo commercially without a strong "Ferrari" association...the image is "only" about the Ferrari. In the second image, it is clearly a cityscape and the association to any one building/sign is trivial.
> For the first image I see their point; on the second I disagree.
> 
> Including a trademark is not enough to cause trademark infringement... but they just don't want any potential of hassle for themselves or their clients.



So would it help in the future to include something in the frame with a vehicle? House, building, bridge etc? 

Thanks. 

I have since removed all the logos from the cityscape...it's amazing how many logo/signs you can find when you start zooming in on an image lol


----------



## vintagesnaps (Feb 4, 2014)

Steve's probably right that if the car is recognizable even without the logo it might not be sellable as a stock photo; a website selling stock photos could potentially sell a photo many times to a variety of buyers for various unspecified uses. They probably can't sell photos with logos and trademarks or that have subjects that are otherwise recognizable because there would be too many restrictions for it to be useable as a stock photo. 

You could look on ASMP's site for some info. about property releases. Business Resources | American Society of Media Photographers


----------



## bratkinson (Feb 4, 2014)

Unfortunately, the US law seems to have leaned towards "actively protect it or you lose it" mentality for corporate anything...from logos to products to buildings.  (I'm not a lawyer, never was, never will, never portrayed one on film or TV).  

What this has done is to make reproduction in any form of large company logos near impossible to 'get away with' if there is any profit involved.  The calendar pictures for a car club is a perfect example.  I recently took some what-I-thought-was-outstanding night pictures of our my employers' intermodal train being loaded for the company calendar (employee submissions) and it was shot down by the legal department as the shippers' corporate logo was clearly identifiable on one of the trailers.  I'm also aware that the legal departments of several railroads have forced model railroad equipment manufacturers to pay some kind of royalty fee for use of the railroad logo on a model boxcar, for example.  

20 years ago, a client I was working at would not allow the corporate logo to be printed by computer as it could not be 100% accurately reproduced by an impact printer at that point in time.  It's a matter of 'faithful reproduction' of the logo as well as an outside organization/company making a profit from use of 'their' logo.

In short, the thought of providing 'free advertising for xxx company' is history.  XXX company either wants some royalties or all use of the logo by other than xxx to be stopped.


----------



## Tailgunner (Feb 4, 2014)

bratkinson said:


> Unfortunately, the US law seems to have leaned towards "actively protect it or you lose it" mentality for corporate anything...from logos to products to buildings.  (I'm not a lawyer, never was, never will, never portrayed one on film or TV).
> 
> What this has done is to make reproduction in any form of large company logos near impossible to 'get away with' if there is any profit involved.  The calendar pictures for a car club is a perfect example.  I recently took some what-I-thought-was-outstanding night pictures of our my employers' intermodal train being loaded for the company calendar (employee submissions) and it was shot down by the legal department as the shippers' corporate logo was clearly identifiable on one of the trailers.  I'm also aware that the legal departments of several railroads have forced model railroad equipment manufacturers to pay some kind of royalty fee for use of the railroad logo on a model boxcar, for example.
> 
> ...



So do car magazines pay a royalty? I've seen brands blurred out when used for TV or Movies unless paid to be used, we put our son in acting lessons and his clothes had to be brand free. But car magazines don't seem to shy away from brands or using detailed photos of vehicles.


----------



## sk66 (Feb 4, 2014)

Tailgunner said:


> sk66 said:
> 
> 
> > The issue is trademarks...
> ...



Trademarks/trademark infringement is a much misunderstood/convoluted area.
Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist. A trademark can be awarded for anything uniquely distinctive. It is most often a logo or a name, but it can also be something as simple as color (the last is rare/odd, but I know of one case). A trademark can be filed for/granted at any time as long as it hasn't already been awarded to someone else.

The inclusion of a trademark in itself does not qualify as trademark infringement. There has to be "an association" that would imply the trademark owner is advocating/associated with the use (commercial use).

But being "right" doesn't always mean much. You could remove the logos and Ferrari could still sue you and "win." They could sue you saying the look of the vehicle is distinctive and therefore "a trademark." They wouldn't "win in court" if no trademark actually existed, but they would "win" simply because their wallet is bigger than yours. Most "clients" will avoid even the possibility of such hassles because they simply aren't worth the headaches.

I suppose there is the potential for them to sue due to the use of "their likeness" on a "privacy rights" basis much as an individual could for commercial use.... IMO that's a stretch, but the courts have ruled that a company has at least some of the rights of "an individual" (i.e. political donations). Again, it doesn't really matter a lot of the time....big wallet wins...


----------



## sk66 (Feb 4, 2014)

Tailgunner said:


> So do car magazines pay a royalty?



Generally no, not that I'm aware of. If it is a "brand only" magazine, then they probably do because it is the brand specifically that gives a large portion of the value to the magazine.

Technically, you could make a calendar of different vehicles and sell it commercially without trademark infringement because the value of the product is not dependent on any one trademark. Conversely, they could all sue you saying at least some of the value of the product is dependent.... fat wallet...

Trademarks being obscured is usually for one of two reasons. Either they just want to avoid any potential headaches; right/wrong not being a major consideration. Or they wanted to get paid for "product placement" and didn't get paid by that company.


----------



## KmH (Feb 4, 2014)

sk66 said:


> Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist.



This seems to say otherwise: (page 7 of - http://www.uspto.gov/trademarks/basics/BasicFacts.pdf)


> *SHOULD I REGISTER MY MARK?*
> 
> Is federal registration of my mark required?
> *No. You can establish rights in a mark based on use of the mark in commerce, without a registration.*
> ...


----------



## skieur (Feb 4, 2014)

Simply put, a car or a building are not copyrightable. The architectural plans to the building may be copyrightable but in US law, a photo does not infringe the copyright of any piece of architecture. Trademark requires "passing off" to be an infringement. That means that you can take a photo of a bottle of coke with the trademark and still be legal, BUT if you have copied the trademark and put it on a bottle to "pass off" some other brown liquid as being coke, THEN you have violated the trademark and of course also committed fraud depending on the specific circumstances.


----------



## apaflo (Feb 4, 2014)

KmH said:


> sk66 said:
> 
> 
> > Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist.
> ...



What it means is you have the right to use the mark, but no right to sue anyone else that also uses it.  Hence if you have been using a given mark and someone else starts to also use it, you have no way to stop them.  If they then register the mark and sue you, you can establish your prior use, and even with out having registered your use of the mark you are protected!  (You are probably also bankrupted by the legal maneuvering, but...)


----------



## sk66 (Feb 4, 2014)

KmH said:


> sk66 said:
> 
> 
> > Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist.
> ...



I stand corrected...
I know that having used the trademark in commerce prior to application makes it both easier to get awarded, and cheaper to file. (I own a trademark...)

I guess it's more like copyright in that sense... i.e. you own copyright but you cannot file for breach of copyright unless the work is registered. The primary difference being that an original artistic work (photograph) is always granted copyright status (i.e. copyrightable). But a trademark may be much more in question (i.e. it's not certain that it qualifies unless you've applied and it's been granted).
If it doesn't qualify, you can't defend it; and if does qualify, you can't defend it unless it's registered.


----------



## apaflo (Feb 4, 2014)

sk66 said:


> I guess it's more like copyright in that sense... i.e. you own copyright but you cannot file for breach of copyright unless the work is registered. The primary difference being that an original artistic work (photograph) is always granted copyright status (i.e. copyrightable).



Under US law if it is copyrightable it is copyrighted, automatically.  But "breach of copyright" is actionable in court whether the copyright is registered or not.  The difference is that if it is registered there are statutory damages (which can be substantial), and if it is unregistered one can sue to force a cease and desist and/or for actual damages (which are hard to prove).


----------



## KmH (Feb 4, 2014)

US copyright is federal law and federal laws are only actionable in US Federal court.

See USC Title 17 § 411 - http://www.copyright.gov/title17/92chap4.pdf - Registration and civil infringement actions

The DMCA statutes (various USC 17 sections) provide for 'takedown' notification to ISP's and other provisions codified in the DMCA statues if a copyright has not been registered. https://nppa.org/page/5617
If an alleged infringer files a counter notice, the only way to stop the infringement is to file a lawsuit in federal court seeking an injunction to stop the infringement.

DMCA maximum statutory damages ($25,000 - see USC 17 § 1203) are substantially less than the maximum statutory damages allowed for registered copyrights ($150,000).
What's An Infringement Worth? | Photo Attorney
Help! I've Been Infringed! | Photo Attorney


----------



## sk66 (Feb 4, 2014)

Not quite. 
I agree that copyright exists upon creation (if applicable).
The difference is if it was registered prior to the violation of copyright. In either case, the copyright must be registered prior to bringing a lawsuit to trial. Section 411(a) of the copyright act requires registration for trial except in the case of a suit for the violation of moral rights (section 106).
Section 411 does allow for "pre-registration" (application filed/fees paid) and that without a completed registration (or ,in fact, with a refusal of registration) you can proceed with a suit. But then a large portion of the case will depend upon the determination of copyright ownership/validity.

We tend to believe "we took the photograph we own the copyright" but that may not be the case. In the case of a completed registration, or a rejection, the bias goes towards the copyright office's decision (which can be questioned/argued, but with limited probability). Without a decision (statement) from the copyright office you open yourself up to many questions as to the validity of your claim...

If there are 20 identical images from 20 different photographers, are they all "original?"
If the photo in question was a re-creation of someone else's work (i.e. you recreate the Mona Lisa almost exactly), is it a derivative work?
If the photograph is largely dependent on another copyrighted piece, do you own the copyright? (i.e. statue, billboard, etc etc)

Without a completed registration the bias is not in your favor. Honestly, I would probably expect most of these questions to go in our favor as the standard for "original" is pretty low. But I wouldn't bet on it in any one case. There have been cases which were decided completely contrary to what I would have expected. I can remember one (which was UK based so less relevant) where the image was completely different but included a portion of the same building and a red bus of the same type as were in another photograph. The second was determined to be a derivative work and copyright infringement of the first. There have been US cases as well, but I don't recall specifics.

And then, once you get done with all of that and your wallet is thinner, you can proceed w/ C&D and actual damages.


----------



## sk66 (Feb 4, 2014)

KmH said:


> DMCA maximum statutory damages ($25,000 - see USC 17 § 1203) are substantially less than the maximum statutory damages allowed for registered copyrights ($150,000).


Yes, but also greater than what you can get for an unregistered copyright...
That's one great reason for "watermarking." It can also make an infringement of a registered copyright "willful" rather than "innocent."


----------



## apaflo (Feb 4, 2014)

KmH said:


> If an alleged infringer files a counter notice, the only way to stop the infringement is to file a lawsuit in federal court seeking an injunction to stop the infringement.
> 
> DMCA maximum statutory damages ($25,000 - see USC 17 § 1203) are substantially less than the maximum statutory damages allowed for registered copyrights ($150,000).
> What's An Infringement Worth? | Photo Attorney
> Help! I've Been Infringed! | Photo Attorney



  Note however that DMCA statutory damages are NOT for copyright violation or infringement.  Damages for infringement are only available under copyright law, and are limited to actual damages if the copyright has not been timely registered.  DMCA statutory damages are for actions such as removing a copyright notice that was attached to a copyrighted work.  A distinct difference.


----------



## bribrius (Feb 4, 2014)

I have a headache


----------



## sk66 (Feb 4, 2014)

apaflo said:


> Note however that DMCA statutory damages are NOT for copyright violation or infringement.


I see them as being "parallel." DMCA is not "only" for removal of copyright notice as such. "Part of it" is removal of CMI (i.e. exif)... it also includes the removal of watermark (doesn't have to be a "formal" copyright notice) as that is owner identification information (there was a recent ruling in this regards)...and it also includes misrepresenting the work as to ownership. i.e. displaying on your site as yours with copyright information (exif) left in tact. 
Both the removal of the watermark and display of the image are *also* copyright infringements.


----------



## apaflo (Feb 4, 2014)

sk66 said:


> apaflo said:
> 
> 
> > Note however that DMCA statutory damages are NOT for copyright violation or infringement.
> ...



They are parallel, but they are not the same.  There is a distinction between copyright infrinement and DMCA violations.  Two very different things, with two very different sets of actual and statutory damages.

Copyright infringment essentially is illegal distribution, DMCA violations are for hiding the infringement. 



sk66 said:


> Both the removal of the watermark and display of the image are *also* copyright infringements.



Removal of copyright management information is not a copyright infringement.   And Exif data is not necessarily CMI either!

  It is a violation of the DMCA to remove copyright management information (that includes watermarks, ownership statements, identifying numbers, etc etc).  That is not a copyright infringement.  Note that 17 U.S. Code § 1202 (c) provides definitions (and exemptions) for exactly what is CMI.  It does not list "Exif data", and hence removing exposure information about an image is not a DMCA violation.  In fact one specific exemption is personal user data; thus the identifying information such as camera model, image serial number, a title, and the author's name qualify as CMI, but a copyright license for one specific user does not, nor does contact information for the copyright owner qualify.


----------



## sk66 (Feb 5, 2014)

Editing/modifying/making a "derivative work" or copying is a copyright infringement. Therefore, editing an image to remove the watermark is both.
Displaying the image as your's is also both as "display" is an exclusive right under copyright, and false representation is a DMCA violation.

But you are correct in saying the Exif is not necessarily CMI... You have to add the CMI to the Exif (IPTC), it's not there by default.



I think we are plenty far off topic now....


----------



## Gavjenks (Feb 5, 2014)

Copyright should be a non-issue. It's POSSIBLE that a stock agency would reject photo #2 for being a recognizable building with a specific owner, and claim it is the "focus of the scene" (the one in the foreground), and request a property release. But ehhh, dunno if they would.

Trademark is an issue, and I don't think you're going to be able to do anything at all to photo #1 to make it acceptable, short of taking a picture of an entire street with the ferrari sitting in one of 20 parking spots and not doing anything special. It doesn't matter if you throw "some extra stuff" in the frame or whatever. If it's the focus of the photo or can be argued to be, it matters potentially, as they might claim you're trying to advertise ferraris or use them to advertise you or whatever.

The Chase bank trademark ... no. If you're really concerned about it, you could clone stamp it pretty easily though and I doubt any viewers would notice, even residents of that city.


----------



## Tailgunner (Feb 5, 2014)

sk66 said:


> I think we are plenty far off topic now....



Yes but at least the added content has been interesting. 

Anyhow, I cloned out the logos/signs in my cityscapes and ready to re-submit them the next available date. I'm not sure about the vehicles, I think in the future I would work on not making them the center of attention in photos and try to incorporate something else with them in the scene.


----------

