administrator
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Selling Aviation Photos Illegal?

Mon Jun 06, 2005 7:57 pm

Hello photographers,

To continue the topic here, I am posting a document of much relevance to our discussion. It was provided by a relative of one of our moderators that works as a lawyer:


F. MEDIA TITLES USED ON COMMERCIAL PRODUCTS AND SERVICES AND COMMERCIAL
MARKS USED IN THE MEDIA
2. Commercial Marks in the Media

10:22.1. Media use--Use of commercial marks in works of art

Commercial trademarks and services marks often appear in works of art. For
example, Andy Warhol's images of CAMPBELL's soup cans are a now famous chapter
in the history of modern art.[FN1] Many famous photographers have included
billboards and store signs in their photos, which are then displayed and
collected as works of art. Works of art depicting sporting events often show
background billboards and the marks of professional sports teams. When does
such a use of marks in art works constitute infringement and when is it immune
as being a non-confusing use under the aegis of free speech protections for
art?

When a trademark is used by another for a valid literary or artistic purpose,
the case law adopts a balancing test: Does the interest in avoiding customer
confusion on affiliation or approval outweigh the First Amendment interest in
free expression? As the Second Circuit has remarked: "[I]n general the
[Lanham] Act should be construed to apply to artistic works only where the
public interest outweighs the public interest in free expression."[FN1.1]

There is a surprising paucity of case law on the legality of the unpermitted
use of commercial trademarks in works of art. In one case, paintings of the
grandstand at the Saratoga Race Track were then reproduced on souvenir goods,
such as T-shirts. The court found no trademark infringement, saying that a
painting of a scene in which a trademark actually appears serves a valid First
Amendment interest: the artistically relevant need of realism.[FN2]

Even a building that is used in an art work may have trademark status.
However, it may be sometimes difficult to prove the existence of a trademark
right in a building, especially when asserting such a right against the use of
images of the building on a poster. For example, the Rock and Roll Hall of
Fame and Museum in Cleveland, designed by famed architect I.M. Pei, has an
unusual and distinctive appearance. The Museum asserted a case for trademark
infringement against a photographer who sold $40 posters featuring a
photograph of the Museum at sunset, the defendant's poster being competitive
with the Museum's own $20 posters showing the Museum at sunset. While the
district court enjoined the defendant's posters as being an infringement of a
trademark in the building appearance, the Sixth Circuit reversed, saying that
the Museum had not proven that it had used the building appearance as its own
trademark and had not proven that defendant's use of the building in his
poster was an infringement. [FN3] However, Judge Martin, dis senting, said
that this case was no less an infringement than if someone sold an unlicensed
poster showing a photo of a COCA-COLA contour bottle: "The Museum enabled its
building to serve as its mark by constructing a signature edifice so unique as
to offer instant recognizability."[FN4]

Author's Opinion: When a commercial trademark appears in a work of art, it is
more likely to be found to be a trademark infringement when (1) the trademark
visually dominates or is the focal point of the art work, and (2) when
reproductions of the art work are sold in commercial quantities or when
reproductions appear on a commercial article, such as a calendar, tote bag or
coaster. In the author's view, these two variables are reasonable predictors
of infringement. Thus, if the two tests are satisfied, a court is apt to find
that the commercialization of the art work will be likely to confuse consumers
into mistakenly thinking that this is a real advertisement or promotion put
out by the trademark owner or one that is approved or licensed by the
trademark owner.

It is no answer for the artist to respond to a complaining trademark owner:
"What are you complaining about? Reproductions of my work are free advertising
for your mark and products." This is no defense because the trademark owner
has no control over the nature and quality of the artistic reproductions. A
trademarked article or advertisement sold without the mark owner being able to
control the nature and quality of the product is not genuine: it is a
misleading use and is an infringement.[FN5]

[FN1] Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 63 U.S.P.Q.2d 1715 (9th
Cir. 2002), cert. denied, 123 S. Ct. 993, 154 L. Ed. 2d 912 (U.S. 2003)
("[T]he trademark owner does not have the right to control public discourse
whenever the public imbues his mark with a meaning beyond its
source-identifying function.... If we see a painting entitled 'Campbell's
Chicken Noodle Soup,' we're unlikely to believe that Campbell's has branched
into the art business.").

[FN1.1] Rogers v. Grimaldi, 875 F.2d 994, 999, 10 U.S.P.Q.2d 1825 (2d Cir.
1989). See discussion at
31:144-31:149.

[FN2] New York Racing Ass'n v. Permutter Publishing, Inc., 959 F. Supp. 578
(N.D.N.Y. 1997) (image of the grandstand at the Saratoga Race Course was not
proven to constitute trade dress so as to prevent defendant's use of the image
on souvenir goods such as T-shirts; as an alternative holding, the court found
that even the depiction of valid trademarks was not an infringement because of
the artistically relevant purpose and the minimal possibility of consumer
confusion). See Cortez v. CMG Worldwide Inc., 962 F. Supp. 308, 311-312
(N.D.N.Y. 1997)(Owners of famous racehorses claimed artists who created images
of famous race horses in racing scenes violated Lanham Act by creating
contusion as to the sponsorship or approval of those pictures. This claim
raises "a novel question of federal law" and therefore court denies a stay in
view of a similar claim pending in state court.)

[FN3] Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134
F.3d 749, 45 U.S.P.Q.2d 1412 (6th Cir. 1998) ("[W]e cannot conclude on this
record that it is likely that the Museum has established a valid trademark in
every photograph which, like [defendant's] prominently displays the front of
the Museum's building.") on remand, 71 F. Supp. 2d 755 (.D. Ohio) (case
dismissed on summary judgment, court finding that not only did the museum not
prove it had used the building design as its trademark, but that defendant
himself did not use the image in such a way as to indicate that the accused
poster was authorized by the museum). See New York Racing Ass'n v. Permutter
Publishing, Inc., 959 F. Supp. 578 (N.D.N.Y. 1997) (image of the grandstand at
the Saratoga Race Course was not proven to constitute trade dress so as to
prevent defendant's use of the image on souvenir goods such as T-shirts);
7:100, regarding trademark rights in a building appearance.

[FN4] 45 U.S.P.Q.2d at 1419. Judge Martin, dissenting, concluded that: "I
believe the Museum has a valid trademark in its building and that a
photographic image of the museum building could qualify as a trademark on
merchandise." 45 U.S.P.Q.2d at 1421.

[FN5] See
3:10.


I think this makes it rather clear that posting images on Airliners.net of any aircraft is not a violation of any copyrights or trademarks (as long as you own the photo copyright). I am still not sure if selling images could cause problems or not.

Your views and comments are appreciated.

Regards,
Johan
Working on the site from morning 'till night that's livin' alright (1997-2007)
 
bjcc
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 8:12 pm

Would selling a photo depend on the country of the buyer and seller?

I note that all of the above are cases which have been heard in the US. If the transaction does not invove the US, then surely the above case law would not apply.

That is not to say that in the country of the seller/buyer similar law does not exist.

On a slightly different point, does not the copyright owner also have to object? If there is no objection raised then there is no complaint and therefore no breach.

Finaly, as far as I am aware there is no granting of a licence by the owners of say British Airways to magazines or book publishers, who regualy sell thier wares with airline photos in them, that would indicate an implied consent by Airlines that they don't see it as any breach of copyright.

Just an opinon.......
 
dc10tim
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 8:24 pm

Quoting Administrator (Thread starter):
1) the trademark
visually dominates or is the focal point of the art work, and (2) when
reproductions of the art work are sold in commercial quantities or when
reproductions appear on a commercial article

As was said in the other thread, the aircraft is the "focal point" here, not the design, therefore the two criteria for infringememnt aren't met.

Reading through all of the above it would appear that selling images is perfectly legal too.

It would be interesting to know what the position is in relation to Swedish law and what international agreements Sweden is party to regarding trademarked designs.

Regards,

Tim.
Obviously missing something....
 
Jaspike
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 8:42 pm

Quoting DC10Tim (Reply 2):
As was said in the other thread, the aircraft is the "focal point" here, not the design,

What about images like these?


View Large View Medium
Click here for bigger photo!

Photo © Andy Vanderheyden



Tom
 
dc10tim
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 9:09 pm

That's a fair point Tom. Clearly that could be considered to be a reproduction of the logo, wheras I doubt an aircraft taking off, for example, could be.

I hope we don't go down the path where the screeners have to be "lawyers" and screen for potential trademark infringements too.

Tim.
Obviously missing something....
 
birdy
Posts: 106
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 9:26 pm

Quoting Bjcc (Reply 1):
Finaly, as far as I am aware there is no granting of a licence by the owners of say British Airways to magazines or book publishers, who regualy sell thier wares with airline photos in them, that would indicate an implied consent by Airlines that they don't see it as any breach of copyright.

Images for editorial use (newspapers, magazines, books etc.) usually do not need model or property releases to illustrate and/or support text.
Images which shows clearly identifiable people, properties, logos, may require a signed property release if it is to be used for commercial purposes like advertisement.

All depends of purpose image is used.

Regards,
Greg
"The nicer an airplane looks, the better it flies"...
 
tappan
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 9:47 pm

Selling IS NOT a problem.
Mark Garfinkel
 
JeffM
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Joined: Sat May 07, 2005 3:32 am

RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 10:16 pm

Quoting Administrator (Thread starter):
(2) when
reproductions of the art work are sold in commercial quantities or when
reproductions appear on a commercial article, such as a calendar, tote bag or
coaster. In the author's view, these two variables are reasonable predictors
of infringement.

Seems pretty clear right there. But again, this would all be argued in court, which would cost more then the sale of the image would bring in.

Greg is very much right on this...

Quoting Birdy (Reply 5):
Images for editorial use (newspapers, magazines, books etc.) usually do not need model or property releases to illustrate and/or support text.

Editorial vs. Commercial is the key.
 
User avatar
clickhappy
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RE: Selling Aviation Photos Illegal?

Mon Jun 06, 2005 11:59 pm

Selling photos of airliners has been around a lot longer than Airliners.net, the internet, and the latest craze of threatening to sue anyone and everyone.

I went to my first airline slide show in 1979 with my dad, that was 25+ years ago, I have never heard of anyone being sued for buying and/or selling a K64 slide of a jetliner.
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 12:19 am

Quoting Clickhappy (Reply 8):
I have never heard of anyone being sued for buying and/or selling a K64 slide of a jetliner.

Great, but that is not what the discussion is about, and just because you have not heard of it happening doesn't mean it hasn't or won't.
 
oly720man
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 12:41 am

Must be a fun life being a lawyer and having to get a definitive view on who owns a trademark/copyright and what it really means.

I can see that if someone lives by their image, or their art, then they want to protect it, but the paint on the side of the aircraft is not the revenue earner so there is no intrinsic value related to an image of an aircraft.

There may be some argument about aircraft in custom colour schemes, e.g. the Peter Max COA 777, but even then, the justification for the artwork and the fact that it is not for commercial gain, per se, probably means that selling photos of it is OK. Legally, it could probably be argued that it was the aircraft that was being photographed and the paint scheme was incidental anyway.

If the Peter Max was retired from service and put in a museum, then the museum could probably claim that they had some sort of right to the image of it, if the museum shop was full of posters and postcards of it and other people taking photos was going to affect their sales.
wheat and dairy can screw up your brain
 
timdegroot
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Joined: Wed Apr 24, 2002 10:37 pm

RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 1:16 am

Quoting JeffM (Reply 9):
I have never heard of anyone being sued for buying and/or selling a K64 slide of a jetliner.

People trying to sell Fuji slides will be sued though Wink

Tim
Alderman Exit
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 1:19 am

Quoting Oly720man (Reply 10):
but the paint on the side of the aircraft is not the revenue earner so there is no intrinsic value related to an image of an aircraft.

The paint on the side of the aircraft is the Trademark, the Logo, the brand. That is what is protected, not the medium in which it is applied, or what it is applied to.
 
DLKAPA
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 1:26 am

I believe in this case that selling commercially is completely legal. I think what the document is saying is that as long as we aren't trying to promote the airline or if what we do could be confused with promoting the airline (you'd have to be dumb to believe that we're promoting certain airlines), then it's ok because we are clearly identifying ourselves as "artists" and not trying to represent the company who's airplane we've just shot.
And all at once the crowd begins to sing: Sometimes the hardest thing and the right thing are the same
 
mikephotos
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 2:17 am

I was told by the legal deparment of a very large (largest in the world?) frieght/package airline that it's perfectly legal to sell/take "real" photos of their airline if you were not selling actual items like mugs and/or similar. Selling the photos to a magazine and/or newspaper was 100% legal and they had no problem with it. And trust me, this company is very very tough on the (illegal) use of their logos/copyright/trademark. A lot of the info posted in these threads are a bit off and/or completely wrong/misleading.

So, if we're talking about selling the photos for publiciation and/or posting on this site we are fine. That's my advice, do what you want with it.

Mike
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 2:32 am

Quoting Mikephotos (Reply 14):
frieght/package airline that it's perfectly legal to sell/take "real" photos of their airline if you were not selling actual items like mugs and/or similar.

What would they do if you were to sell their logo on mugs, calendars, posters, etc? We knew editorial work (magazine, newspapers) was not in question.
 
nosedive
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 3:02 am

Pro- Avphotography sales are illegal arguments:

Quoting Administrator (Thread starter):
Does the interest in avoiding customer
confusion on affiliation or approval outweigh the First Amendment interest in
free expression?



Quoting Administrator (Thread starter):
"The Museum enabled its
building to serve as its mark by constructing a signature edifice so unique as
to offer instant recognizability."[FN4]



Quoting Administrator (Thread starter):
trademark infringement when (1) the trademark
visually dominates or is the focal point of the art work, and (2) when
reproductions of the art work are sold in commercial quantities or when
reproductions appear on a commercial article, such as a calendar, tote bag or
coaster. In the author's view, these two variables are reasonable predictors
of infringement. Thus, if the two tests are satisfied, a court is apt to find
that the commercialization of the art work will be likely to confuse consumers
into mistakenly thinking that this is a real advertisement or promotion put
out by the trademark owner or one that is approved or licensed by the
trademark owner.



Quoting Administrator (Thread starter):
"What are you complaining about? Reproductions of my work are free advertising
for your mark and products." This is no defense because the trademark owner
has no control over the nature and quality of the artistic reproductions.
A
trademarked article or advertisement sold without the mark owner being able to
control the nature and quality of the product is not genuine: it is a
misleading use and is an infringement.



Quoting Administrator (Thread starter):
violated Lanham Act by creating
contusion as to the sponsorship or approval of those pictures.



Quoting Administrator (Thread starter):
the artistically relevant need of realism.

Effectively, the spirit of these court cases comes to a crux when brandings can be confused/missused and that harm may come from the inability to control the use of a brand. A photo of an American MD80 on a.net
View Large View Medium
Click here for bigger photo!

Photo © Eric D Smith- Rocky Mountain AvPhotos

does not allow for American to control the branding of their paint scheme. Does the photographer, Eric Smith, violate the Lanham Act by confusing the branding of American Airlines? Will American suffer any harm from this photo? Would the implied risks of commerical harm from said photograph justify AA to use the image without consent, so that they may control the theme and aspect of the image? Note, I'm not saying AA would do this, I'm asking would this line or reasoning would hold up in court? I'm also not saying that Eric's character of avphoto mold him as sleezy/evil etc, the fact that he gets into fender benders w/ lil old ladies will cement that charaterization  Wink. Of course, damage from trade mark infringement appears to be difficult to prove, espcially when so many images are instantly recognizable. Also, where does Eurowhite play into this equation? The similiar paint schemes AA and the US special livery could create branding problems between the 2 airlines.
View Large View Medium
Click here for bigger photo!

Photo © Chris Burns
View Large View Medium
Click here for bigger photo!

Photo © Wayne Cowan

Does this create any less confusion? Finally, who owns a trademark when it is being used in a different context? Case in point. http://www.rockymountainavphotos.com/rockymountain.jpg and
View Large View Medium
Click here for bigger photo!

Photo © Kyle Matson - Rocky Mountain AvPhotos

Does this F9 bird advertise F9 or RMAP? Is this bird now essential to the advetising of RMAP??
 
TS
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 3:16 am

I still don't understand why we are discussing about U.S. law. A.net is based in Sweden, which is not under U.S. jurisdiction.

Thomas
Even a broken clock is right twice a day.
 
Jan Mogren
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 3:16 am

That is $200 per hour...

 Wink

/JM
AeroPresentation - Airline DVD's filmed in High Definition
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 3:23 am

Quoting TS (Reply 18):
I still don't understand why we are discussing about U.S. law. A.net is based in Sweden, which is not under U.S. jurisdiction.

Easy, the thread starter Bronko lives in the U.S.. There are also international copyright/trademark laws that may apply in Sweden as well.
 
mikephotos
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 3:41 am

Quoting JeffM (Reply 15):
What would they do if you were to sell their logo on mugs, calendars, posters, etc? We knew editorial work (magazine, newspapers) was not in question.

They would require you to stop and possibly pay damages I'm sure. I knew editiorial work was not a problem but from reading these posts (also from the other forum) some people were confusing the two.

The incident that caused these threads was just the posting of the image online (bizjet), not sales of mugs, pics and so on. I was keeping on topic.

Mike
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 4:02 am

Quoting Mikephotos (Reply 21):
They would require you to stop and possibly pay damages I'm sure.

Is something along these lines what you are referring to as types of sales they would look to prevent? (examples only...names + photoID removed)

http://home.comcast.net/~jwckmiller/anetstuff/likethis.jpg
 
DLKAPA
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 4:12 am

Now I know why I'm glad I didn't opt in on the photo sales Big grin
And all at once the crowd begins to sing: Sometimes the hardest thing and the right thing are the same
 
mikephotos
Posts: 2887
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 4:25 am

Quoting JeffM (Reply 22):
Is something along these lines what you are referring to as types of sales they would look to prevent? (examples only...names + photoID removed)

yes, from talking with the guy (nice as heck) that is something they would be concerned about. when we were talking he mentioned mugs/coffee cups specifically as an (one) example. btw...it wasn't the airline in your example  Wink

mike
 
birdy
Posts: 106
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 5:26 am

Quoting Mikephotos (Reply 21):
Quoting JeffM (Reply 15):
What would they do if you were to sell their logo on mugs, calendars, posters, etc? We knew editorial work (magazine, newspapers) was not in question.

They would require you to stop and possibly pay damages I'm sure.

Thinking this way...

Profiting from advertisements like on A.net or other similar site where aircraft photos/logos appear, and constitute main reason of traffic and way to attract viewers, would be considered also as illegal?
If someone sells prints, mugs, calendars or whatever with copyrighted logos, shapes (aircraft) etc. it is commercial activity and it is illegal. I suppose profiting from adverts in this situation is just another form of this activity... confused 

Confused...
Greg
"The nicer an airplane looks, the better it flies"...
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 6:27 am

Quoting DLKAPA (Reply 22):
Now I know why I'm glad I didn't opt in on the photo sales

Well, after reading Mike's response, which is what I believed to be the case from the research I did, I've removed the few hundred photos that I did have marked as "Buy a Print". Prints are one thing, but adding all that other stuff to the sale category I believe crosses the line.
 
TS
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 6:40 am

Quoting JeffM (Reply 20):
There are also international copyright/trademark laws that may apply in Sweden as well.

The Lanham Act is not international law.
Even a broken clock is right twice a day.
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 6:42 am

Quoting TS (Reply 26):
The Lanham Act is not international law.

Did I mention the Lanham Act? No. I didn't.  Wink Keep looking, you'll find it.
 
TS
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Joined: Thu Sep 04, 2003 9:19 pm

RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 6:46 am

Quoting JeffM (Reply 27):
Keep looking, you'll find it.

Why don't you read the first post? This is what this thread is about. Keep looking, you'll find it.
Even a broken clock is right twice a day.
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 6:54 am

Actually, this is what the thread is about....

Quoting Administrator (Thread starter):
To continue the topic here,

Threatened With Legal Action Over ANet Photo (by Bronko May 20 2005 in Aviation Photography)

You implied / assumed I was referring to the Lanham Act, why? I have no idea.

ttfn  talktothehand 
 
User avatar
clickhappy
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 8:47 am

Jeff, what is your problem? This thread is about brain storming, collecting ideas and getting various peoples point of views.

I am not sure why you feel the need to dismiss other peoples point of views and ideas.

Do you know something we don't know? If so, share it, but please do not act as some sort of judge and jury on the thoughts of others.

And, if taking a slide photo is not the same as posting a photo on a website and selling please explain to me the differences, I am curious to know.

[Edited 2005-06-07 01:49:09]
 
JeffM
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 9:53 am

Quoting Clickhappy (Reply 30):
if taking a slide photo is not the same as posting a photo on a website and selling please explain to me the differences, I am curious to know.

Royal, I would have thought that you could tell the difference between hawking slides at a convention or on e-Bay and selling mouse pads, mugs, calendars, etc of somebody's tradmarked logo. Simply selling one image from here was not my point.

Quoting Clickhappy (Reply 30):
Jeff, what is your problem?

Don't have one, What's yours? But thanks for asking.

Quoting Clickhappy (Reply 30):
..please do not act as some sort of judge and jury on the thoughts of others.

I'll consider it, if you will stop saying crap like that, it's my opinion, if it's not to your liking, oh well. I guess we can agree to disagree.
 
birdy
Posts: 106
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RE: Selling Aviation Photos Illegal?

Tue Jun 07, 2005 6:59 pm

There is more information’s about trademarks and photography.

Quote:
Exceptions

There are many exceptions and escape clauses to this. First, there is that pesky old First Amendment. You can use a trademark all you like if you're expressing an option of it (satire, ridicule, or other commenary). Also, artful representations are permitted for the same reason (since art is considered a form of expressing an opinion). Be careful not to cross that line back into the protection zone of the trademark's domain: a blatent copy or other unaltered representation produced for the purpose of selling products is clearly a violation, not an expression of opinion, art or other speech.

While it's not an "exception" to the rule, there is a matter of practicality for protecting marks. The owners of the Transamerica building might not pursue someone that sells an image of it, even though it's a trademark infringement, simply because the violation is too small to bother with. (For example, a photo of the building is hung in a cafe and sold to a customer is not going to excite any lawyers.)

http://www.danheller.com/biz-trademarks.html

So is selling prints, mugs, posters etc. with trademarked logo of an airline a violation, or not?

Greg
"The nicer an airplane looks, the better it flies"...
 
TransIsland
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RE: Selling Aviation Photos Illegal?

Wed Jun 08, 2005 2:12 am

Quoting Administrator (Thread starter):
when
reproductions of the art work are sold in commercial quantities

I would think that most photo sales on a.net hardly qualify as "commercial quantities." Though it'd be interesting to know what the definition is - if there is one...
I'm an aviation expert. I have Sky Juice for breakfast.
 
mikephotos
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 1:03 am

For those who haven't read it, here's a good article from PopPhoto (hope it wasn't posted, didn't see it here)

http://www.popphoto.com/assets/download/57200311838.pdf

Mike
 
administrator
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 5:34 am

Alright guys, time to make a decision on this issue. It seems the laws are quite unclear and that there is no way to know for sure unless it is tried in court.

Lets first mention two important facts:

* Any photos on Airliners.net not part of the Print Sales program are "for editorial use" and after having read about this issue in detail I can say without reasonable doubt that our usage is lawful and anyone suing us would loose in court.

The rest of this discussion only applies to photos for sale as prints via the Print Sales program.

* The photos on Airliners.net are art. It takes a heck of a lot of skill and work to get a photo accepted here. The photos are not copies of trademarks but original work of art that might contain a trademark (which is not the main focus).

The below quotes are from the text in my first post:

Quote:
The court found no trademark infringement, saying that a painting of a scene in which a trademark actually appears serves a valid First Amendment interest: the artistically relevant need of realism.

Although that text refers to a painting I have no reason to belive that it does not apply to other works of art, like our photos.

Quote:
However, Judge Martin, dis senting, said that this case was no less an infringement than if someone sold an unlicensed poster showing a photo of a COCA-COLA contour bottle: "The Museum enabled its building to serve as its mark by constructing a signature edifice so unique as to offer instant recognizability."

There they are with certainly discussing the situation where the coca-cola bottle or the building is the main motif of the photo. I would be very surprised if coca-cola had any rights to photos where someone happens to be holding or drinking from a coca-cola contoured bottle and the bottle is not the main focus. Instead, "the artistically relevant need of realism" should be the winning argument. Likewise, trademarks like logos and forms appearing on our photos should not be cause for concern unless they are the main motif. We do not accept such photos (closeups of the tail logo for instance where _only_ the logo is visible) but some might have slipped through. If you have such a photo for sale, I advice you remove it from the Print Sales program.

Quote:
Author's Opinion: When a commercial trademark appears in a work of art, it is more likely to be found to be a trademark infringement when (1) the trademark visually dominates or is the focal point of the art work, and (2) when reproductions of the art work are sold in commercial quantities or when
reproductions appear on a commercial article, such as a calendar, tote bag or
coaster.

1) Discussed above
2) I am rather sure that our small Print Sales operation does not constitute "commercial quantities". However, we do sell prints on cups, bags etc (although I haven't actually seen any sale). I will remove that and only prints will be available through the Print Sales program.

Quote:
a court is apt to find that the commercialization of the art work will be likely to confuse consumers into mistakenly thinking that this is a real advertisement or promotion put out by the trademark owner or one that is approved or licensed by the trademark owner.

I will make it clear on all relevant pages that all trademarks are the property of their respective owners.

Quote:

Be careful not to cross that line back into the protection zone of the trademark's domain: a blatent copy or other unaltered representation produced for the purpose of selling products is clearly a violation, not an expression of opinion, art or other speech.

This is clearly not the case on Airliners.net. The photos on Airliners.net are all original works of art.

Below is a quote from
http://www.popphoto.com/assets/download/57200311838.pdf

Quote:
If I photograph a large group of people and plan to sell the picture, would I need model releases from every person who’s already identifiable?

If you just want to sell fine-art prints, or even posters, you should be OK without releases. If you license the picture for use in a book, you should get by without any releases as long as you don’t allow the publisher to put the photo on the cover of the book or use it in promotional materials. If you put it on coffee mugs or allow its use in any way that would be for purposes of trade or advertising, you are probably going to be liable for the invasion of someone’s right of privacy unless you have gotten releases from every person who is recognizable in the photo.

This text discusses model releases but the laws are similar for trademarks. I included it to show the difference between our Print Sales (fine-art prints & posters) for private, non-commercial use and other uses.

Should, I happen to be wrong, there's always this:
(from http://www.danheller.com/biz-trademarks.html)

Quote:
For that reason, rest assured: you're not going to get yourself into trouble just because you inadvertently used a photo that may have happened to have a trademarked logo. First of all, you're still protected by the same First Amendment issues discussed in Model Releases. See the section on Risk/Reward Analysis for discussion. Also remember that the law usually allows for the "reasonable person" escape: if a "reasonable person" would do the same thing because there is not enough notice of a possible trademark violation, then one cannot be held culpable. You may still have to stop doing whatever you're doing with the image, but the judge is highly unlikely to fine you, unless you're found to be aware of what you were doing (i.e., you've been warned before).

That's my view of this complex issue. As long as we sell prints for non-commercial private use we are ok. Yes, these laws discussed are US laws but they should be very similar in Sweden (and probably more to our advantage). The only companies that have contacted use and threatened with legal action are US based and it is important that we know how to reply next time that happens.

Your views & comments are appreciated.

Regards,
Johan
Working on the site from morning 'till night that's livin' alright (1997-2007)
 
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clickhappy
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 5:42 am

Nice work Johan, I think your reasoning is clear and accurate.

If anyone disagrees or is worried about breaking the law they can ask that their photos be removed.
 
JeffM
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 6:07 am

Quoting Mikephotos (Reply 34):
For those who haven't read it, here's a good article from PopPhoto

Good info Mike! Thanks for bringing it up.
 
administrator
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 6:21 am

I have now implemented the changes explained above (print sales only for prints and trademark notice).

Regards,
Johan
Working on the site from morning 'till night that's livin' alright (1997-2007)
 
DLKAPA
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 6:24 am

Is there a possibility that this thread can be saved so we can use this for reference should I or any other photographer get a threatening e-mail?
And all at once the crowd begins to sing: Sometimes the hardest thing and the right thing are the same
 
mikephotos
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 9:41 am

Quoting JeffM (Reply 37):
Good info Mike! Thanks for bringing it up.

Thanks Jeff. I know most of it we covered from the numerous posts from everyone but it's always good to see what we think is in writing somewhere, by a somewhat legit. source.

Johan...good work. I agree with your above comments/actions.

Mike
 
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eksath
Crew
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 11:24 am

FYI: Editorial use

A few months ago, I had issues with some of my pictures. The opposing lawyer informed me that despite the fact the pictures (on here) were NOT for commercial sale they were here for "my personal gain" by exhibition (i.e. not monetary but personal standing among my peers etc) hence I was "profiting" from the mere presence of those pictures here. This was the interpretation of a this pitbull US lawyer. I guess this concept has to be debated in a court?


I eventually pulled the pictures from here and the matter did not go further than lawyer talk so i dont know where the line would have been drawn.
World Wide Aerospace Photography
 
bigphilnyc
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 2:47 pm

What's funny is the beating I would lay on some lawyer if he ever tried to extort me like that. He can threaten suing me again and criminal charges all he wants, but he's the one that will still have to deal with not being able to eat solid food for 6 weeks.

Shit like this really pisses me off, and I'm ecstatic to see Anet, at its highest levels, going to lengths to once again defend photographer's rights.

-Phil Derner Jr.
phil@nycaviation.com
Phil Derner Jr.
 
Jan Mogren
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 6:45 pm

Phil,
that reminds me of how you wanted to greet Mr Avrane in France.
What happened there?

/JM
AeroPresentation - Airline DVD's filmed in High Definition
 
bigphilnyc
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 9:00 pm

We were able to come to another agreement.
Phil Derner Jr.
 
mikephotos
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RE: Selling Aviation Photos Illegal?

Thu Jun 09, 2005 10:54 pm

Quoting Eksath (Reply 41):
A few months ago, I had issues with some of my pictures. The opposing lawyer informed me that despite the fact the pictures (on here) were NOT for commercial sale they were here for "my personal gain" by exhibition (i.e. not monetary but personal standing among my peers etc) hence I was "profiting" from the mere presence of those pictures here. This was the interpretation of a this pitbull US lawyer. I guess this concept has to be debated in a court?

Eksath, sorry but the above is so wrong it's not even funny. He bs'd you and got the better of you. He's the reason for all the bad lawyer jokes. I'd throw my pics back on ASAP and send him an email saying FU.

Mike
 
Kempa
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RE: Selling Aviation Photos Illegal?

Fri Jun 10, 2005 10:54 pm

Johan,

All that you posted on the top of this thread relates to TRADEMARK. It seems the lawsuit threat was based on COPYRIGHT. These are two very different legal concepts. Even though I don't think that there was any infringement, it would be better if you could get a legal opinion based on copyright law.

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