Ford Claims Ownership Of Your Pictures 739
Mike Rogers writes "In a move that can only be described as 'Copyright Insanity', Ford Motor Company now claims that they hold the rights to any image of a Ford vehicle, even if it's a picture you took of your own car. The Black Mustang Club wanted to put together a calendar featuring member's cars and print it through CafePress, but an attorney from Ford nixed the project, stating that the calendar pics and 'anything with one of (member's) cars in it infringes on Ford's trademarks which include the use of images of their vehicles.' Does Ford have the right to prevent you from printing images of a car you own?"
EULA (Score:5, Funny)
Hold on a moment. Let me get the EULA out of the glove box.
Re:EULA (Score:4, Informative)
Even magazines doing reviews of vehicles need the permission of the maker in order to print the article (most have standing agreements). Newspapers can, for example, show a photo of a car wreck, but were they to runa review, they'd need permission to use the images, even if they were taken of vehicles owned by the paper.
This is not Ford saying "you can't take and print pictures of your car" It's just them saying "we're so concerned we're loosing money to the imports that we're going to sue you for trying to make even a few bucks from a fund raiser, unless you're interested in profit sharing that is..."
Re:EULA (Score:5, Insightful)
I think what the United States needs right about now is a virus that kills about 80% of all litigators. You still need a few for legitimate, rational affairs, but it's clear that American civilization is going to be crushed under the weight of sheer greed, stupidity and self-destructive self-interest.
Re:EULA (Score:5, Funny)
Comment removed (Score:4, Funny)
Re: (Score:3, Funny)
Wrong automobile manufacturer, you're thinking of the De Lorean, not Ford.
Re: (Score:3, Informative)
The Fedex Incident (Score:4, Interesting)
Reminds me of the unbelievably asshatted C&D that Fedex sent this guy - for posting pictures of his house decorated with Fedex boxes: http://www.fedexfurniture.com/couch.html [fedexfurniture.com]
You can not buy better publicity that that at any price. I could imagine someone doing this deliberately for the Streisand effect, but that would require a lawyer with a sense of humor, a sense of irony, or even the slightest shred of humanity.
Re: (Score:3, Insightful)
"How many American industries have sued themselves into extinction? I'm having trouble thinking of one."
Gee, you must be new here. How about those guys who used to say they "owned Unix"?
You know, the SCOundrels, those litigious bastards who are in voluntary Chapter 11 bankruptcy, because otherwise they'd already be in Chapter 7?
Re:EULA (Score:5, Informative)
The pictures of the cars are copyrighted to the person who took the picture.
The only thing Ford is in the right about here is that they are perfectly allowed to send cease and desist letters to anybody they'd like, and they can even file suit. They would almost certainly lose, though.
This works the same way with people too. A newspaper can sell 10,000 copies with the picture of (insert your favorite NFL football player here) on the front page if their photographer took the photo out on the street where he wasn't under any NFL ticket/press contract.
Re: (Score:3, Insightful)
Second, yeah, as a personal person, you can comment on your car. You can state
Re:EULA (Score:5, Insightful)
Luckily, trademark is what Ford is talking about, here.
Re: (Score:3, Informative)
Actually, in many jurisdictions it is an abuse of the court's processes to threaten legal proceedings when you know you have no basis to do so and with a collateral purpose (that is, not to assert genuine legal rights but to obtain some commercial or other advantage). I'd say this satisfies both of th
Re: (Score:3, Informative)
Nope. Making money by selling pictures of somebody else's product or even their mark is not a trademark violation.
First, a trademark violation generally requires at minimum reasonable probability of confusion. To my knowledge, Ford doesn't sell calendars, so you might even be able to get away with starting the Ford Calendar Company, though the famous mark laws might still come back to bite you in the ass.
Re:EULA (Score:5, Insightful)
The original purpose of trademarks was for consumer protection. Specifically, it was to prevent consumers from being confused when buying products and services, so when they see a "Ford" branded car that they know it came from the Ford Motor Company.
That's why, for example, there is still a Domino's Pizza and a Domino's Sugar. Two firms independently have trademarks on "Domino's", but they're on two separate products (pizza and sugar). Consumers are unlikely to mistake a large pepperoni pizza for a pound of sugar, and vice versa.
If this club were making its own cars and trying to brand those as Ford using the Ford logo, or if the club were making its own cars and constructing them in the likeness of a Ford model, then trademark protection has merit — we don't want consumers mistaking Fords and pseudo-Fords. However, in this case, the club is selling a calendar. Ford is not in the calendar-making business, and it is difficult to imagine that a consumer will somehow mistake a calendar and a car.
Re: (Score:3, Informative)
No, that's not relevant. I can't go out and start a pizza company called "Domino Pizza" or a sugar company called "Domino's" -- the names are close enough so that they could be reasonably confused.
There are a number of other examples -- Delta Airlines and Delta Faucets comes to mind -- where the names of two non-competing companies really are identical and both trademarked. (Apple, Inc., formerly Apple Computer, and Apple
Re: (Score:3, Informative)
Anyone can reproduce a trademark, without limit or exception, as long as one condition is met: It's use always refers to the trademark holder's product exclusively. You can show the Ford or Mustang logo all you want, as long as you are using the to refer to Ford Motor Company and it's Mustang automobile. Using them to refer to any other product, service, or company is however forbidden.
Copyrights are more general: You are not allow
Re:EULA; you are incorrect (Score:5, Informative)
That is incorrect. Chapter 17, section 107 of the United States code clearly states that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
Here, your example is perfectly on point with 17 USC 107. The review would be criticism, comment, and news reporting at a minimum, and arguably teaching.
>they CAN prevent an organization (in this case a car club) from printing, selling, (and thus profiting) from those images without their permission.
This is also incorrect, but not as egregiously. 17 USC 107 distinguishes commercial and noncommercial ventures as one of the factors in determining whether a particular use is fair use. However, in this case even the Red Cross (a nonprofit) could run afoul of the law by printing the calendar because of "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". That means that if they print a pic of the entire car, that fact counts against them. Speaking of factors that count against them, 17 USC 107(4) raises the consideration of "the effect of the use upon the potential market for or value of the copyrighted work." Here, that means that Black Mustang Club is reducing the value of the design because nobody is going to buy a Black Mustang Club calendar and also buy a calendar from Ford. (Black Mustang Club would counter that they are raising the value of the Mustang by printing the calendar, but their claim is speculative whereas Ford's claim of reduction in the sale of Ford calendars is pretty solid. Judges don't like speculation.)
Re:EULA (Score:4, Funny)
Free Marketing (Score:4, Insightful)
Re: (Score:3, Insightful)
As such, American law is written such that they must either attack people who mean no harm, or lose the right to defend themselves in the future against actual harms.
This isn't Fords fault, it's the broken-ass laws of the United States.
Re:Free Marketing (Score:5, Informative)
They could choose another option: License their trademark for a pittance.
They don't have to "object". They can also "authorize".
Re: (Score:3, Informative)
Re: (Score:3, Informative)
Write this one up to stupid lawyers who don't know jack about marketing and good will. Good will, by the w
OT: Explain Porsha... (Score:3, Informative)
If you say the word Porsche in English the e is silent. And since I speak fluent German the e at the end is not an Sha, it is more like the e in wet or like the e in Good Day, eh. What I am wondering is how the e turned into a?
Re: (Score:3, Informative)
FWIW, I learned that it is more of an "uh" sound than a "ah" sound...
Re: (Score:3, Funny)
This is offtopic I know I know... But why on earth do people call their Porsche PorSha? I never understood this.
If you say the word Porsche in English the e is silent. And since I speak fluent German the e at the end is not an Sha, it is more like the e in wet or like the e in Good Day, eh. What I am wondering is how the e turned into a?
The same way "Danke schön" became "Donkah shane", Frankenstein became "Frankensteen", and "Weimaraner" became "Whymeriner", Americans love above all else to butcher a language. And that ain't irregardless of nobody y'all.
Fish (Score:4, Interesting)
In the film "A Fish Called Wanda" someone comments on a girl whose name was Portia: "why would someone name their daughter after a car?"...
And speaking of fish and English language pronunciation, Bernard Shaw once remarked that the word fish could be spelled "goti": G as in laugh, O as in women, and TI as in action.
Dangerous precedent (Score:4, Insightful)
Now, imagine what it's like if you have to get permission to put *any* product in *any* picture.
I have no idea what legal grounds Ford has, but this MUST be prevented from spreading to pictures of products in general.
(Of course, Ford could just be trolling for easy cash because of that whole not-funding-workers'-pensions thing...)
Re:Dangerous precedent (Score:4, Interesting)
No, I'm not talking about the ones where the car is featured prominently (Transporter, Transformers, etc.) - in those the movie studio clearly got permission (or was paid prominently for their use). I'm talking about background vehicles. The studios do not and never have paid for their use when they were filmed on a public street. If Ford tries to press this, they'll have the movie studios pressing against them.
Re: (Score:3, Interesting)
But besides that, we don't know enough of the context here to make a rash and contextually opinionated stand. If the selling point of the calendar is because it has fords owned by members of the club, it would seem that the incidental inclusion of ford is prime to the marketing of
Re:Dangerous precedent (Score:5, Funny)
Re: (Score:3, Informative)
2. If Ford doesn't defend their Trademarks, by law they lose them. Thus, the law compels companies to act like this, whether the companies like it or not.
3. There are exceptions in the law for works that are sufficiently derivative. If you're selling calendars of cars that look like they co
Re: (Score:3, Funny)
no (Score:4, Insightful)
Re: (Score:3, Insightful)
Re: (Score:3, Interesting)
As much as I want to dislike Ford for doing this, I'm with you. Shortly after reading this and realizing that the headline is sensationalized... I realized that the calendar is just like one Ford might sell only made by a third party who isn't paying Ford anything. No one cares that it's the something-something-car-club, they would be buying it for the images of the Mustang's design.
If I drew my own copies of my favorite Dilbert strips, could I sell a book of them? Seems like basically the same thing.
Now
Ford's trademarks... (Score:3, Insightful)
Huh (Score:5, Funny)
It's obvious! (Score:4, Funny)
heh heh (Score:4, Funny)
email your illegal pictures back the CEO (Score:5, Interesting)
Wrong question. (Score:3, Insightful)
You mean "Does Ford have the right to prevent you from selling images of a car you own?
And the answer should still be know. Just thought I'd clarify.
Ford's response (Score:5, Informative)
"Although you and your members may own the Ford automobile, you do not own the rights to the trade dress. Taking pictures of any Ford automobiles, placing them on products (i.e. calendar, mugs, t-shirts, etc.) and making them available to the public for sale is an infringement of Ford's intellectual property rights."
"Because of the cachet of the world-famous Ford name, thousands of independent businesses and people make a living from or pursue a hobby related to Ford products and services. Unfortunately, many of these businesses improperly attempt to affiliate themselves with Ford by using Ford trademarks and trade dress (for instance, the depictions or photographs of Ford's distinctively shaped vehicles) in advertising their products and services."
"If a business not affiliated with Ford uses any Ford trademark, whether through the use of photographs, depictions or silhouettes, or any confusingly similar variation thereof, without Ford's express, written consent, then that business is violating Federal and state trademarks laws."
"It is also not sufficient for a business to state that it is not affiliated with Ford but continue to use Ford trademarks without permission. The business is still misappropriating the goodwill and reputation developed by Ford, and attempting to capitalize on or profit from Ford's goodwill and reputation. Even with the best of intentions, unauthorized use of another company's trademark is against the law."
"At times Ford enthusiasts question why Ford is so adamant about policing it's trademarks and preventing unauthorized uses or infringements of them. It is quite common for someone who is using a trademark without permission to say, "I'm giving Ford free advertising, so why does Ford care?" Ford cares because it is important that Ford be able to exercise control over the quality of the product or service bearing Ford's trademarks."
"To protect the value of its trademarks, Ford is obligated to object to and pursue unauthorized uses of its trademarks and trade dress, even if the use of the trademark or trade dress does not appear offensive or objectionable."
Re:Ford's response (Score:5, Insightful)
The use of wording like "depictions or photographs of Ford's distinctively shaped vehicles" (emphasis added) is similarly over-reaching. By that rationale, every product is distinctive and thus cannot be used in a commercial image.
In any case, I don't think trademark law was intended to provide the blanket power that Ford is grasping for (where they inherently own all commercial endeavors that happen to include a Ford product somewhere).
Re: (Score:3, Insightful)
If you bought a Ford calendar and found it to be terrible, or unflattering of their vehicles, or som
Re: (Score:3, Insightful)
Boycotting Ford.... (Score:3, Insightful)
Ford you get to lose out on at least one sale.
To heck with suing. Just hurt em where it hurts....their profits.
Re:Boycotting Ford.... (Score:5, Funny)
We're talking about ford, right?
I think you mean hit them with more losses.
Reason number 312 not to buy a Ford....... (Score:3, Insightful)
Stupid (Score:5, Funny)
I've heard a lot of stupid claims over intellectual "property" before, but this one really takes the cake*.
(*used with permission from Duncan Hines, a subsidiary of Pinnacle Foods Group, LLC.)
Be More Specific (Score:5, Informative)
The blanket term "Intellectual Property" covers a wide range of laws that often cover the same basic concept (creating a system of ownership for ideas), but are implemented in very different ways. When discussing these laws, it's very important to be specific about what kind of IP is being discussed.
The summary makes it sound like Ford is claiming copyright on the pictures (which they almost certainly don't have the rights to). However, it seems that Ford is actually claiming trademark status on the car's design, and an image of that car would therefore infringe on that trademark.
Not only that, but the tags (the most abused feature on Slashdot) cite "patent", another set of IP laws which have nothing to do with anything here.
Public View (Score:5, Informative)
Just GIVE THE PERMISSION !!! (Score:3, Insightful)
That would have seemed like a win-win sort of thing. Free marketing, retention of their rights, etc.
It does seem that with trademarks you are indeed obligated to protect them or you may lose them. But I don't quite see why Fordwould have had to be so foolish about it.
copyrighted designs in commercial media (Score:4, Informative)
It seems like that's the issue here -- it's a calendar they were going to sell, right? At the very least, Cafe Press was going to make money from the sale. Seems like the legality is pretty clear there.
Now, whether Ford should exercise its rights in this instance is another issue, involving public relations and stuff like that. Seems like a bad move to me, but it's their choice.
Thank you, Ford (Score:4, Interesting)
rj
Barbie, too (Score:5, Interesting)
I'd guess in the instant case the publication could happen if they eschewed the use of "Ford" or any model designation. Kinda defeats the purpose if you have to leave the word "Mustang" off a calendar of Mustangs, but there you go.
This is about Trademarks, not Patents or Copyright (Score:5, Insightful)
Furthermore, trademark law requires trademark owners to respond to such acts of potential trademark infringement. If they do not so act, then later infringers may point to the inaction and claim that Ford has abandoned their trademark. Note that this is unlike copyright and patents, which give the rightsholder more discretion in pursuing individual cases.
None of this is to say that this is a good business decision. In its current financial state, Ford should be working with its few remaining fans to produce properly licensed calendars, shirts, etc that maintain Ford's intellectual property rights. That way, everybody wins. This sort of knee-jerk "shut 'em down" response does both the company and its fans a disservice in the long run.
Just Boycott Ford! (Score:3, Funny)
Re:Just Boycott Ford! (Score:4, Funny)
An answer. (Score:4, Insightful)
This is a trademark vs copyright issue. The question asked is a red herring. The actual question is "Does Ford have the right to block one from selling, for a profit, an image that includes their trademark?"
The answer is "Yes, they do have that right. They have to protect their trademark or they lose it."
YANAL (Score:5, Insightful)
This is a misconception. They do have the right to protect their trademark and they say the logo of the group is too similar to their trademark. Trademark is not however a right equivalent to copyright. The purpose of a trademark is to distinguish the products of an individual or business from others. It does not grant a copyright interest in pictures taken of the products, even if they include the trademark on them. These are the products of the company that bear the trademark, it is not confusing in the least. Read this odd case [lsu.edu] about the Rock 'n Roll Hall of Fame which trademarked their building design and the photographer that sold a poster of the building. The appeals court specifically noted this:
So the trademark is protected only so far as it is used as an indicator of the source or sponsorship of the product. It is completely legal to take photographs of trademarked goods and to sell them. Andy Warhol's paintings [poster.net] anyone?Thus without reading the complaint itself and the reasons Ford has we are left with only two conclusions. 1) they are completely brainlessly trying to infringe on the rights of the motor club 2) there is something more to the case of the mark of the club that is used to identify the source of the calendar is too similar to Ford's own mark. In the first case the summary is correct and Ford is wrong. In the second case the summary is misleading and Ford might be right.
Oh well (Score:5, Funny)
Whisper down the lane bullshit (Score:4, Insightful)
The "article" here is on a site called "AdRants." Good start huh? Then it links back directly to BMC's web page that tells you little except their side.
Basically, BMC (Black Mustang Club), created a calendar for it's members of, well, black mustangs! They then sent this to cafepress, who then sells it to BMC members.
Ford owns the rights to it's own trademarks, the Ford Logo and the mustang emblem. These are clearly displayed on the calendar, which you have to go a few links in to find. It's your car, and you can do what you want with it, but this is a specific "mustang" calendar and it makes clear references to the Mustang and Ford. Ford at least has some complaint. To untangle this will require a lawyer steeped in trademark law, which I am not.
The statement that Ford owns the images of your car is bogus, and was an obvious tantrum reaction to having Ford put a cease and desist on cafepress' desk. The letter that Ford sent to cafepress is not anywhere to be found in the chain of articles here, and without that, whining is pointless and childish, because Ford might have a point. Trademark law protects the little guy as well as the big guys so you can't complain that Ford is being a bully here without more facts presented.
Now there are plenty of grey areas here, legally. Can cafepress sell the calendar only to BMC? Can they sell it at cost only? What's the difference between selling pictures of your own car for $5, and selling a calendar? What's protected and what's not when you take pictures of property you own? Was a line crossed when you grouped 12 people's mustangs together and sold them to a specific group of people through an unaffiliated company? I'm not a lawyer, but the "article" fails to address any of that.
Sure, Ford is being heavy handed, all the big corporations are. But you should only skip to "pounding the desk" in legal terms after you'd pounded on the law and/or the facts first.
So there is no real news here, and Slashdot yet again lets it a crap article get in.
I hope the next post defines the legal points I could not uncover.
Porsche does this too (Score:4, Interesting)
The workaround? Slap a number on the car. Viola! Instant race car; it becomes YOUR trademark, and does not infringe on theirs.
Do the same with your Ford Rustang (Yes, I am ragging on the Mustang - with this kind of action Ford deserves it. As an aside I actually LIKE the Mustang), your Ford Lightning, or whatever it is you want to include in your own original artwork.
The number need not be intrusive. Just put a small Bill Elliot "94" on your classic Mustang. No more trademark infringement. Or, just digitally add it.
This is done all the time by specialty shops which work on Porsche products.
Note to Ford: Take a hike.
Ford is full of it (Score:4, Informative)
Companies & cities have tried similar tactics with national landmarks and their buildings, to either gain a revenue stream or prevent anyone else from creating products that might compete with their own projects or be used in lawsuites or public criticism, but again all of them have been tossed out of court.
Copyright only protects their original works, and Trademark only protects their products from duplication or, neither prevent you from making pictures and selling them for profit.
Photographer here... (Score:5, Informative)
Actually, this has always been the case.
I'll preface this by saying that more freedom is always better, and I don't like Ford.
However, this is not really an oddball case at all. Ford, I'm fairly certain, registers all their designs as trademark(s), thereby enabling them to legally preclude an entity from reproducing said designs for their own commercial purposes. In fact, in order to maintain their trademark, Ford has to actively defend their trademark which is likely the reason for this action. IE, if they let this relatively harmless group operate outside of fair use, they have to let everyone do so (in other words, their trademark is no longer a trademark).
Although I wouldn't put it past them to try, they cannot stop you from taking pictures of your car to send to mom, put on your MySpace page or keep on your desk at work. They can't stop you from taking a picture of the car to put with your Auto Trader ad when you go to sell it.
They probably can't stop you from using photos of a car in a fine art piece for sale or display (artistic appropriation is a bit touchy, but is generally allowed by the courts).
They can't stop you from taking pictures of the car to accompany a news piece (for example, a photo of a Police Interceptor in flames or a photo of a Focus on the road for a review).
As for printing playing cards, calendars, posters, coffee mugs, etc. and selling them, for profit or not, they will do what they can to keep you from doing so. That is pretty much in-the-clear commercial appropriation, and is not allowed.
In other cases, usually the sports organization or the player him/herself owns the TM to their likeness to prevent me from going to an event, shooting pictures of the player and then selling prints/posters off my website. That doesn't mean that I don't still own the copyright to the photo, it just restricts what I can do to exercise my use of that photo. It doesn't stop me from publishing the photo as a news piece.
One could argue that if these are heavily modified cars, they are no longer identifiable as Ford's TM, and then the logo could be airbrushed out and the photo/calendar is probably a-ok.
The problem is that Ford is likely acting completely within their rights here, and unless this group has the cash to fight it in court, it's a case-closed event.
I'll reiterate that one of the pitfalls of trademark is that they have to be protected to be enforced, unlike (or at least less than) copyright. Some suit somewhere got wind of this and has no choice but to enforce their trademark to keep the trademark.
Nothing to see here...
Scale models... (Score:3, Informative)
I had a longer post, but it got eaten by the server.
Dr E
In other news... (Score:4, Funny)
Ford's Business Plan? (Score:3, Funny)
1) Find one of the three guys who's actually PROUD to own a Ford.
2) Piss in that guy's corn flakes.
3) ???
4) Profit. I believe *I* made more than Ford did last year...
This Issue has been settled before (Score:3, Informative)
All that being said there is an easy way to resolve this. I work for a company that sells aftermarket car parts. On our website, we wanted to use the Ford blue oval trademark image to guide people who were looking for Ford car parts. We asked Ford for a royalty-free license to use there trademark and were granted permission. We included mockups of how we were going to use it so their lawyers didn't freak. Everythings was businesslike and professional. Businesses do this all the time.
Mod's modded people up for that? (Score:3, Interesting)
Is it the media companies constant talk about Intellectual Property that has convinced all you ignorant posters that somehow a company has the right to the control how products are used or even pictures of products? It's absolutely astonishing that anyone would defend Ford in this matter as "protecting their rights". Well I guess they are protecting their made up rights which have no basis in the law. Maybe if all the corporations can convince Americans that this is the way the law is that congress will make it the law. Maybe, just maybe that is the ultimate goal. And with the confusion, fair rights and first sale doctrines along with freedom go out the window. Ignorance isn't an excuse, you should be ashamed.
It's all about the "chilling effect" (Score:3, Interesting)
Msft does the same thing, that is what the scox-scam is all about. Msft does not like ibm, or anybody else, contributing to linux. So msft has made it clear that if you contribute to linux, you better be ready to spend $50 - $100 million defending yourself in a bogus lawsuit.
Quality Customer Care - So much for brand loyalty. (Score:3, Interesting)
You dont own what you buy, you liscense it. Thats the new mentality. You cant take a picture of yourself and print it, if you're wearing a hat that says ford on it
That is how crazy it is.
What was ford, again? (Score:3, Funny)
Forcing Our Rights Downyourthroat...
Unreasonable restriction of trade (Score:3, Funny)
Thankfully it's Ford. I mean, if it was Ferrari or something I'd care, but Ford?
Ab-so-lu-te-ly, totally, completely insane. I thought I'd seen everything now, but this is award winning stupidity. This may not be bettered, not just in 2008 but possibly this decade (well, OK maybe by another Sony rootkit or RIAA, but those are easy targets. This is in a stupidity class of its own).
Applause guys. Could we have the names of the clowns who dreamt this up so we could avoid accidentally employing them? Thanks.
Re:Form? (Score:4, Funny)
Re:Form? (Score:5, Funny)
Who cares about a typo when the HEADLINE is wrong? (Score:5, Insightful)
It's a bit of a grey area, but I can't say I see Ford being outside the realm of reasonableness here.
people own the *cars*, too, and their pics (Score:4, Insightful)
These cars aren't copyrighted. They may contain patents, but the image of them doesn't violate a patent, as images can't be patented. This is not a grey area in the copyright law.
They are being totally unreasonable here. I'm reposting my own Ford pics on my sight the very next thing I do. I eagerly await a DCMA take-down message, for with it, gives me the federal nexus to demonstrate my injury to a federal judge. What hubris.
Re:people own the *cars*, too, and their pics (Score:5, Insightful)
There are three main types of intellectual property. You forgot the one that's relevant to this case.
Rob
Re:people own the *cars*, too, and their pics (Score:5, Interesting)
Trademark isn't relevant either.
Trademarks exist in order to prevent one company from marketing something that appears to be a product of another company.
There are two potential trademarks at issue. One is "Ford", and the other is "Mustang".
The creators of the calendar are not selling Ford calendars, nor are they using a trademark in a way that would be likely to make a purchaser of the calendar believe that Ford Motor Company created the calendar.
The creators of the calendar are also not selling Mustang calendars, nor are they using the trademark in a way that would be likely to make a purchaser of the calendar believe that the owner of the Mustang trademark (the Ford Motor Company) created the calendar.
The calendar is clearly associated with "BMC" (aka, the "Black Mustang Club"), and the Club's title did not apparently raise the ire of Ford's trademark lawyers (as it shouldn't have). If they were taking pictures of cars on Ford dealership lots, then maybe Ford would have a point on copyright, since they nominally own the vehicles on those lots, but not on trademark, at least not as the calendar is currently composed.
Yes, the OP failed to mention trademark, but that doesn't make Ford's move any less bone-headed. Ignoring the fact that they are alienating a group of people who are (or were, at least) fans of one of the company's cars, they are opening themselves up to countersuit, and a whole bunch of bad PR...all over a fan calendar. The lack of immediate reaction from their PR department (legal did WHAT??? Our bad...go ahead and print the calendar...Chevy sucks!) is staggering.
Re: (Score:3, Insightful)
It's pretty clear that they are, actually, since the pictures in it are all of Mustangs.
Ignoring the fact that they are alienating a group of people who are (or were, at least) fans of one of the company's cars, they are opening themselves up to countersuit, and a whole bunch of bad PR...all over a fan calendar.
If they didn't, they'd run the risk of losing their trademark protection, which would be far worse.
Rob
Re:people own the *cars*, too, and their pics (Score:4, Insightful)
So give them a free license for it instead of alienating them. Then the illusion of trademark protection remains and the Mustang fans get to publish a calendar.
Re: (Score:3, Informative)
As requested. (Score:4, Funny)
Re:people own the *cars*, too, and their pics (Score:5, Informative)
Copyright = an original work of authorship fixed in a tangible medium of expression.
Trademark = any device that associates a good with the source of that good.
Ford has LOTS of trademarks when I search for "Mustang" at the PTO. Since a trademark could arguably cover the look of the Mustang (I did not go through the huge list), they could either have federal trademark protection in the look. Even if there weren't a federal mark, Ford probably has common law rights in a trademark for the look.
This, though, has NOTHING to do with the ownership of the photographs. The copyrights to the photographs will belong to the photographers. This does not mean that the copyright owner can use the photographs for whatever purpose they want. There may be other intervening laws (privacy, publicity, decency, trademark, etc.). By way of example, if I took a picture of a Gucci logo I would own the photograph (if it met the criteria for copyright), but I can't freely paste that picture on to a purse and claim a defense of "well I own copyright."
So the real question here is, is whether the use of Ford's trademark (perhaps even more than one) covering the Mustang infringed by the sale of the calendar. The test is whether such a use is likely to cause confusion as to the source of the calendar. And, frankly, it seems pretty clear that it could: if you saw a calendar, you'd probably think that either Ford or Ford's authorized licensee put out the calendar. So you have a trademark infringement. The only question then is whether there is fair use here, and I don't see it.
Nope. (Score:5, Insightful)
Here's why and how:
google image search this term: "ford mustang for sale". Look at the mind-boggling number of hits.
Now tell me the use of a pic of a Mustang in a for-sale ad is different than putting them into a calendar on a website.
It is not. It's an image, used for the gain of the advertiser. In one case, to sell a used or new Mustang. In the other case, to exemplify the characteristics of ownership of the car. No diff. Estoppel says that 80-90 years ago, Ford should have made a claim
Fie.
Re:Nope. (Score:5, Informative)
Second, nothing stops someone from using the name Ford or Ford Mustang nomatively. You don't have to refer to the company as "That car company with the blue oval logo that sells the pony car named after a wild horse."
Third, not every use is going to be unlicensed. Many of those hits are probably dealerships.
Fourth, to the used cars, remember the question is whether a consumer is likely to be confused as to the source of the product. If you're calling a ford mustang a ford mustang, you're probably safe. If you're trying to sell a Datsun as a mustang, you've got a different problem.
Finally, NONE of this has to do with the case here. Using Ford's marks to sell a calendar is VERY different than using Ford's marks to sell a Ford car that you was lawfully acquired.
Re:Nope. (Score:5, Funny)
Re:Nope. (Score:5, Interesting)
(As a part time photographer who sells his pictures I have an interest in this, and *my* lawyer tells me that as long as there isn't any brand confusion - that is, as long as I'm not selling my pictures as "official" photographs, I have nothing to worry about. I'm currently going round and round with the local city council over the same issue, ie photographs of historical city landmarks which the city seems to think they have the rights to limit photographs of. They even have that printed on the landmark info posts. Sigh. Can anyone point me to relevant cases? )
tic
Re:Nope. (Score:5, Insightful)
On the one hand you are selling the actual good (the car itself) that you legally acquired from Ford under the name that you purchased it. So an ad saying "Buy my Ford Mustang" is safe so long as it's a Ford Mustang. Even taking a picture of the Ford you're selling will likely be safe.
On the other hand, you're selling a different good (a calendar) using the mark owned by Ford.
As I've now said in a bunch of posts, the issues are: 1) was the use of the marks on the calendar a use in commerce; and 2) is the use likely to cause confusion.
The answer to the first question is very clearly yes--they are/were SELLING a calendar by exploiting the the Ford marks. In some sense, it doesn't make sense for them to do it any other way.
The second answer also seems to be likely "yes." A consumer picking up the calendar about Ford Mustangs might think that the goods originated with Ford or someone authorized to use.
Re:Nope. (Score:5, Insightful)
I take a picture of it, like a million modders the world over might do, and post it, because I'm proud of my work. Let's say someone takes notice of it, and wants to include it in their calendar. Think of all the van and old pickup truck modders, the VW modders, and so on. Someone makes a buck from the calendar; after all, calendar makers aren't a not for profit group.
Or let's say I like old Jags and put together an old Jag calendar. Or perhaps a nice picture book of old Jensens, or Harleys or whatever.
It's not up to any of the aforementioned brand/trademark owners to claim anything. They ought to be blessed that we bought their pieces of crap to begin with. Invoking image ownership is a sure ticket to hell. I own the vehicle; I took the photo, and I'll do whatever I want to do with the photo, without the onus of some vendor's spin control hanging over me. It's mine, baby, no one else's.
Should a vendor cite a vendor for infringement of a trademark or marque (think of putting a Bentley grill on a BMW--whoops-- BMW owns Bentley so a Rolls grill on a Subaru) and there might be some contention were it to be problem.... then what of the Rolls grills that were put on VWs as an aftermarket add-on? I see them around now and again.
To reiterate: I own this stuff, and do what I want with it. If someone buys my image, so much the better. That trademark law should extend to contours is hilarious, but probably has been tested by some idiot judge somewhere. That Nike swoosh looks just like a check mark to me. Hmmmmm. These bonds are tenuous at best. Ford overstepped them with a big foot. Oh wait......
Re:Who cares about a typo when the HEADLINE is wro (Score:4, Insightful)
- as all the manufacturers of clothing will be able to object and prohibit photographs being sold with their products.
- all the background objects, buildings, props, etc. will likewise be objected too.
Come one everybody, let's enter into the 2nd American Slavery Period. When the mind and thought and idea became enslaved regardless of one's race.
Re: (Score:3, Funny)
Re:Form? (Score:4, Interesting)
Comment removed (Score:5, Informative)
Re: (Score:3, Informative)
Re:Seems good news (Score:4, Funny)
Re: (Score:3, Funny)
I'd argue it's:
"At ford, quality and style is an accident. Desperately trying to stay afloat is job 1! Oh and litigation is job 2!"